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  • Can defense inform a Texas jury of their right to acquit?

    I would like to thank Clay Conrad for his work and for providing the
    following link for us: http://www.fija.org

    Does a criminal defense have the right to inform a Texas jury of their right
    to acquit in court? If not, why would it be considered wrong to inform them
    of their rights?

    Lets assume grandma's registration expired and was subsequently pulled over
    by police who then ask for proof of insurance. As she opens her glove
    compartment, the officer notices a hand gun that turns out to be loaded.
    After searching the vehicle, the officer also finds 2 ounces of marijuana
    plus a half smoked joint in the ashtray. When questioned, grandma says that
    she knows nothing of the drugs or the gun and that nobody else has a key or
    drives her car which is always stored in her garage. Additionally, no
    foreign prints are discovered on the gun or in her car.

    She also takes a drug test and comes out negative and this information is
    provided to jurors.

    According to the Texas Penal code, I would guess that grannie could end up
    convicted since elements to certain crimes could be proven without a
    reasonable doubt and the jury would have to vote in accordance with how they
    were instructed by the court.




  • #2
    Can defense inform a Texas jury of their right to acquit?

    Richard,

    Thanks for responding.
    Instructions to the jury as to what they may vote upon is the job of the judge. If the prosecutor or defense attorney attempts to do so, the judge will
    most
    likely remind them of that fact.
    In my opinion, a very unfair situation for the defendant. The jury already
    thinks that the defendant is guilty of at least something for being
    accused/arrested.
    In your scenario, it would be discovered that a grandson had come over to the house not to long ago and did some car repair work on the vehicle.
    While
    taking his sweet time, the grandson smoked a few joints with the car radio playing. Heavy metal station of course. Grandma don't listen to the radio. At no time was grandson actually inside the car other than to turn the
    radio
    on and off. While turning off the radio, he puts out the joint he was smoking. Checking to see how many joints he had left, he opens the pouch, several fall out onto the seat, but misses two. Grandma walks into the garage at
    the
    moment checking on him and he has to hide what he has. The gun was her husband's who was a police officer in another state and always kept the gun, loaded, in the glove compartment. She just left it in place just in case she might need it some day.
    What if nothing like your scenario above would have transpired?

    The entire neighborhood knows that grandma is an honest good citizen who
    doesn't do drugs and she has many character witnesses to testify on her
    behalf. But since all of the elements necessary to convict grannie were
    found to be true, grannie would be convicted.

    A jury that was told of their given rights may vote differently.

    Marc

    "either we all hang together, or we most assuredly will all hang
    separately" - Ben Franklin

    "Government is not reason; it is not eloquence; it is force!
    Like fire, it is a dangerous servant and a fearful master." - George
    Washington


    Comment


    • #3
      Can defense inform a Texas jury of their right to acquit?

      On Sat, 19 Jul 2003 21:36:35 GMT, "Marc DeLuca"
      <[email protected]> wrote:
      Instructions to the jury as to what they may vote upon is the job of the judge. If the prosecutor or defense attorney attempts to do so, the judge willmost
      likely remind them of that fact.
      In my opinion, a very unfair situation for the defendant. The jury alreadythinks that the defendant is guilty of at least something for beingaccused/arrested.
      I have long suggested that the judge tell the jury something to the
      effect that if they think there is a reasonable innocent explanation
      for the evidence, they should acquit; if they don't think there is a
      reasonable innocent explanation, they should convict. I get nothing
      but hysterical denunciations from the defense lawyer contingent. They
      think it necessary that instead, the judge read some confusing
      gobblede**** about what reasonable doubt is. A confused jury is a
      shyster's best friend.

      PS: I am sympathetic to an additonal instruction that if they think
      that what the defendant did shouldn't be a crime, regardless of what
      the law is, they can (or even should) acquit.

      RHR

      Comment


      • #4
        Can defense inform a Texas jury of their right to acquit?

        "Zen Cohen" <[email protected]> wrote in message news:<[email protected] >...
        "Robert Risch" <[email protected]> wrote in message news:[email protected]
        Most of the judges on Texas' highest criminal court agree that the definition of reasonable doubt is indeed confusing; as a result Texas law now generally prohibits reasonable doubt from being defined in the jury charge.
        Combine that with the fact that the very term "reasonable doubt" tends
        to shift the burden of proof and deny the presumption of innocence.
        Juries don't need reasons to doubt - they need reasons to convict. If
        my job as a defense attorney is to CREATE a REASON to doubt, then it
        must be presumed that if I stay home, the defendant will be convicted.
        That's certainly not the way it is supposed to be. Some courts have
        twisted this on its head so far they tell juries they should be able
        to articulate their reasons to doubt the State's case. Do they have
        to articulate their reasons to convict? No.

        For an excellent article on this point, see Steve Sheppard's article
        at 78 Notre Dame L.Rev. 1165 (2003).

        Clay S. Conrad
        www.fija.org

        Comment


        • #5
          Can defense inform a Texas jury of their right to acquit?

          On 26 Jul 2003 02:10:56 -0700, [email protected] (Clay S. Conrad)
          wrote:
          "Richard" <[email protected]> wrote in message news:<[email protected]>...
          "Marc DeLuca" <[email protected]> wrote in message news:[email protected] ..
          I would like to thank Clay Conrad for his work and for providing the following link for us: http://www.fija.org Does a criminal defense have the right to inform a Texas jury of their
          right
          to acquit in court? If not, why would it be considered wrong to inform
          them
          of their rights?
          The question is not whether the defendant has a "right" to have thejury so informed. He does not have that 'right.' He does, however,have the right to say many other things to the jury that cansuccessfully and powerfully telegraph that message. Good lawyers dothat every day. I should know; I practice law in Houston.
          I find the question totally bizarre. Does the questioner think that
          the average juror feels that he will be punished for voting for
          conviction? How can the defense lawyer get up and argue for
          acquittal if the jury didn't have the right to acquit?

          RHR

          Comment


          • #6
            Can defense inform a Texas jury of their right to acquit?

            On 26 Jul 2003 02:16:37 -0700, [email protected] (Clay S. Conrad)
            wrote:
            Most of the judges on Texas' highest criminal court agree that the definition of reasonable doubt is indeed confusing; as a result Texas law now generally prohibits reasonable doubt from being defined in the jury charge.Combine that with the fact that the very term "reasonable doubt" tendsto shift the burden of proof and deny the presumption of innocence.
            Nice job. You got three vague concepts into the same sentence.
            Juries don't need reasons to doubt - they need reasons to convict. Ifmy job as a defense attorney is to CREATE a REASON to doubt, then itmust be presumed that if I stay home, the defendant will be convicted. That's certainly not the way it is supposed to be. Some courts havetwisted this on its head so far they tell juries they should be ableto articulate their reasons to doubt the State's case. Do they haveto articulate their reasons to convict? No.
            What court is this? What do you think of courts (continental Europe
            and South America) where the decision makers have to explain their
            decision in writing, no matter what it is? Do you think a jury should
            be able to articulate their reasons for taking millions or billions
            out of the defendant's pocket and putting it into someone else's?

            RHR

            Comment


            • #7
              Can defense inform a Texas jury of their right to acquit?

              >"Robert Risch" <[email protected]> wrote in message
              news:[email protected]
              I find the question totally bizarre. Does the questioner think that the average juror feels that he will be punished for voting for conviction? How can the defense lawyer get up and argue for acquittal if the jury didn't have the right to acquit? RHR
              Please allow me to clearify the reason for asking if a jury can be informed
              of their given rights to acquit.

              According to www.fija.org, jurors have the right to acquit if they the law
              is a bad law or it is being wrongly applied. Unfortunately, the courts
              instruct jurors to follow the letter of the law. Additionally, very few
              people are aware of their nullification power. Jurors are "assumed to know"
              that they can refuse to convict if doing so would violate their concience or
              sense of justice.

              Just because a jury finds every element in a crime is found to be true, does
              not mean that accused had bad intention or that any harm was done. Although
              the jury may feel this way, they will likely vote to convict if they follow
              the law as instructed by the court. People's lives can be unjustly ruined
              because the jury is not informed of their constitutional juror rights.


              Comment


              • #8
                Can defense inform a Texas jury of their right to acquit?

                On Sun, 27 Jul 2003 17:02:27 GMT, "Marc DeLuca"
                <[email protected]> wrote:
                Please allow me to clearify the reason for asking if a jury can be informedof their given rights to acquit.According to www.fija.org, jurors have the right to acquit if they the lawis a bad law or it is being wrongly applied. Unfortunately, the courtsinstruct jurors to follow the letter of the law. Additionally, very fewpeople are aware of their nullification power. Jurors are "assumed to know"that they can refuse to convict if doing so would violate their concience orsense of justice.Just because a jury finds every element in a crime is found to be true, doesnot mean that accused had bad intention or that any harm was done. Althoughthe jury may feel this way, they will likely vote to convict if they followthe law as instructed by the court. People's lives can be unjustly ruinedbecause the jury is not informed of their constitutional juror rights.
                Why doesn't the FIJA sponsor television commercials giving this
                message? That would get around judges who refuses to let a lawyer
                give such an argument. What happened to the lady, in Colorado I
                think, who pissed off a judge by voting to nullify? I doubt he could
                jail her. Now if a juror is asked during voir dire about their
                nullification views, and lies, then he or she should keep their mouth
                shut during deliberations and just refuse to convict. I can imagine a
                jurisdiction where what went on during deliberations is not
                privileged.

                RHR

                Comment


                • #9
                  Can defense inform a Texas jury of their right to acquit?

                  Robert Risch <[email protected]> wrote in message news:<[email protected]>. ..
                  On 26 Jul 2003 02:10:56 -0700, [email protected] (Clay S. Conrad) wrote:
                  "Richard" <[email protected]> wrote in message news:<[email protected]>...
                  "Marc DeLuca" <Marc[email protected]> wrote in message news:[email protected] .. > I would like to thank Clay Conrad for his work and for providing the > following link for us: http://www.fija.org > > Does a criminal defense have the right to inform a Texas jury of their
                  right
                  > to acquit in court? If not, why would it be considered wrong to inform
                  them
                  > of their rights?The question is not whether the defendant has a "right" to have thejury so informed. He does not have that 'right.' He does, however,have the right to say many other things to the jury that cansuccessfully and powerfully telegraph that message. Good lawyers dothat every day. I should know; I practice law in Houston.
                  I find the question totally bizarre. Does the questioner think that the average juror feels that he will be punished for voting for conviction? How can the defense lawyer get up and argue for acquittal if the jury didn't have the right to acquit? RHR
                  I took the question as mean the right to acquit in the teeth of law
                  and facts. A lawyer can always tell the jury that they have the right
                  to acquit, and that they are the sole determiner of the facts, and no
                  matter how violently the judge may disagree, personally, with the
                  juries view of the facts, the judge cannot reverse them or punish them
                  in any way on the basis of his disagreement.

                  Clay S. Conrad

                  Comment


                  • #10
                    Can defense inform a Texas jury of their right to acquit?

                    Jon Beaver <[email protected]> wrote in message news:<[email protected]>. ..
                    I think the analysis has to be a little more sophisticated than that. Does an all-white Southern jury in 1940 have a "right" to acquit a KKK member of lynching black men? I think it's more useful to think of it as a "power" or "authority" to acquit, despite clear evidence of guilt under the law, which the Constitution left in place as a hedge against government tyranny and which, like any other power, can be abused. I think the standard jury instructions are adequate to implicitly apprise the ordinary juror that he has that authority. - Jon Beaver
                    This is largely a myth. I did a great deal of research into the
                    lynching and civil rights murder cases. There was very little jury
                    nullification in such cases. There was, however, a great deal of
                    insincere prosecution, biased adjudication, and perjurious testimony
                    by police. For example, in the first two Byron Dela Beckwith cases,
                    two police officers, in uniform, testified that Beckwith was about 200
                    miles away, with them, when the shooting took place.

                    In the Emmett Till murder case, the town sheriff testified that the
                    body discovered was probably not Emmett Till, and that his
                    investigation revealed Till was still alive in Chicago.

                    In the Jon Daniels murder case, the judge denied a state motion for
                    continuance to allow one witness to recuperate from the attempt on his
                    life enough to come to court and testify. This was only six weeks
                    after the shooting.

                    All these verdicts were blamed on jury nullification in the press.
                    Pure scapegoating. It was the legal professionals who engineered the
                    verdicts, then blamed the jury.

                    For the results of my research, see the article Scapegoating the Jury,
                    7 Cornell Jrl. Law & Pub. Pol'y 7 (1997).

                    Clay S. Conrad
                    www.fija.org

                    Comment


                    • #11
                      Can defense inform a Texas jury of their right to acquit?

                      On 3 Aug 2003 10:10:00 -0700, [email protected] (Clay S. Conrad) wrote:
                      Robert Risch <[email protected]> wrote in message news:<[email protected]>. ..
                      Combine that with the fact that the very term "reasonable doubt" tendsto shift the burden of proof and deny the presumption of innocence. Nice job. You got three vague concepts into the same sentence.
                      None of those phrases are very vague. They are no more vague thanterms like "not guilty." It merely takes a little knowledge of lawand a little thought and they become as clear as any otherepistomological terms.A reaosnable doubt exists when the case has not been proven to a levelof certainty that leaves no room for a reasonable person to doubt thestate's case.
                      I remember a high school math teacher who would ridicule dictionaries
                      that would define a cello as a big fiddle and a fiddle as a small
                      cello. Apparently your education didn't emphasize self criticism
                      sufficient to guard against being circular. Try this, "Reasonable
                      doubt means a belief that a reasonable innocent explanation for the
                      evidence can not be ruled out".
                      The presumption of innocence means that until such alevel of certainty exists, the defendant is presumed innocent.
                      You aren't defining presumption of innocence. You are giving mumbo
                      jumbo that it is some state that exists as long as there is
                      "reasonable doubt", a concept you haven't explained. I am
                      unenlightened. Now try this, "Presumption of innocence means that the
                      fact that the defendant has been charged can not be considered as part
                      of the evidence for his or her guilt".
                      The burden of proof refers to which party is required to prove their caseto prevail. The presumption of innocence casts the burden of proof onthe State. Until they meet their burden beyond reasonable doubt, thedefendant wins.
                      Until or unless? Previously, you said that "reasonable doubt" tends
                      to shift the burden of proof. Are you backing off?
                      I'm not interested in civil cases.
                      Smart move. I cringe, thinking of the nonsense that would ensue if
                      you were.

                      RHR

                      Comment


                      • #12
                        Can defense inform a Texas jury of their right to acquit?

                        On Sun, 03 Aug 2003 20:03:52 GMT, Robert Risch <[email protected]>
                        wrote:
                        On 3 Aug 2003 10:10:00 -0700, [email protected] (Clay S. Conrad) wrote:
                        Robert Risch <[email protected]> wrote in message news:<[email protected]>. ..
                        >Combine that with the fact that the very term "reasonable doubt" tends >to shift the burden of proof and deny the presumption of innocence. Nice job. You got three vague concepts into the same sentence.
                        None of those phrases are very vague. They are no more vague thanterms like "not guilty." It merely takes a little knowledge of lawand a little thought and they become as clear as any otherepistomological terms.A reaosnable doubt exists when the case has not been proven to a levelof certainty that leaves no room for a reasonable person to doubt thestate's case.
                        I remember a high school math teacher who would ridicule dictionariesthat would define a cello as a big fiddle and a fiddle as a smallcello. Apparently your education didn't emphasize self criticismsufficient to guard against being circular. Try this, "Reasonabledoubt means a belief that a reasonable innocent explanation for theevidence can not be ruled out".
                        Sorry Risch. You are the one playing the fiddle/cello game here.
                        Innocence is uproved guilt. Guilt is not unproved innocence.

                        - Jon Beaver

                        Comment


                        • #13
                          Can defense inform a Texas jury of their right to acquit?

                          On Sun, 03 Aug 2003 15:31:10 -0700, Jon Beaver <[email protected]> wrote:
                          I remember a high school math teacher who would ridicule dictionariesthat would define a cello as a big fiddle and a fiddle as a smallcello. Apparently your education didn't emphasize self criticismsufficient to guard against being circular. Try this, "Reasonabledoubt means a belief that a reasonable innocent explanation for theevidence can not be ruled out".Sorry Risch. You are the one playing the fiddle/cello game here.Innocence is uproved guilt. Guilt is not unproved innocence.
                          What game are you playing? An innocent explanation for the evidence
                          means a scenario in which the evidence is produced by other means than
                          the defendant doing what he is accused of doing.

                          P.S. I haven't been in the Ken Smith threads since I can't figure what
                          they are all about. Are they anything comparable to Mike's "One
                          Person's Word for it"?

                          RHR

                          Comment


                          • #14
                            Can defense inform a Texas jury of their right to acquit?

                            On Mon, 04 Aug 2003 03:03:38 GMT, Robert H. Risch
                            <[email protected]> wrote:
                            On Sun, 03 Aug 2003 15:31:10 -0700, Jon Beaver <[email protected]> wrote:
                            I remember a high school math teacher who would ridicule dictionariesthat would define a cello as a big fiddle and a fiddle as a smallcello. Apparently your education didn't emphasize self criticismsufficient to guard against being circular. Try this, "Reasonabledoubt means a belief that a reasonable innocent explanation for theevidence can not be ruled out".Sorry Risch. You are the one playing the fiddle/cello game here.Innocence is uproved guilt. Guilt is not unproved innocence.
                            What game are you playing? An innocent explanation for the evidencemeans a scenario in which the evidence is produced by other means thanthe defendant doing what he is accused of doing.
                            You still want the defense to have the burden of proving reasonable
                            doubt. A glass that is half full is also half empty. But if the
                            requirement is that be MORE than half full, it's not full enough. The
                            standard is BEYOND a reasonable doubt. Logically, mathematically, in
                            the theoretical world, lines have no thickness. In the real world,
                            they do. In the theoretical world, there are no ties. In the real
                            world, who wins in case of a tie is worth fighting over.
                            P.S. I haven't been in the Ken Smith threads since I can't figure whatthey are all about. Are they anything comparable to Mike's "OnePerson's Word for it"?
                            After passing the Bar Exam, Ken Smith was nevertheless denied
                            admission to the Colorado Bar on moral and mental fitness grounds. It
                            seems that because of some rancorous public disputes with a
                            televangelist, and ensuing petty lawsuits between them, they asked him
                            to take a psychological exam, and he refused. (actually, he says he
                            told them to "take a flying leap") According to him, that's the sole
                            reason they denied him, but some of us are skeptical and he won't
                            provide information from the record. The Colorado Supreme Court
                            affirmed his denial of admission to practice law after a review of the
                            record and the briefs filed by both sides.

                            On the record, he might have a case for U. S. Supreme Court review.
                            But, for some reason, he insists that it was a denial of his "civil
                            rights" and sued the individual members of the Colorado Supreme Court
                            in Federal District Court for DAMAGES! Several lawyers have been
                            trying to point out to him that he has mistaken his remedy, and he has
                            been trying to point out to us that we are full of ****. Oh, well . .
                            .. you've been trying to tell me that for years too!

                            His lawsuit was dismissed for lack of federal court jurisdiction,
                            rendering it unnecessary to point out to him that the individual
                            members of the Supreme Court of Colorado have absolute immunity! He
                            appealed to the U.S. Court of Appeal. They affirmed the dismissal.

                            So now he's appealing to usenet!


                            - Jon Beaver

                            Comment


                            • #15
                              Can defense inform a Texas jury of their right to acquit?

                              Jon Beaver <[email protected]> writes:
                              Not exactly. The question for each juror is "Are YOU convinced?" Not"Would some other 'reasonable ' juror be convinced?" It's asubjective test...
                              By itself, this question would lead to many hung juries. So at some
                              point during the deliberations, some of the jurors will likely ask and
                              answer a slightly different question.
                              --
                              Rahul

                              Comment

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