Incall - legality and Risks ??
- Thread starter danmand
- Start date
If the jury does not agree with the law, they still can find the person not guilty. Not sure if in Canada this is right.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
jury nullification
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.
When has jury nullification been practiced? The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels, the only issue the court said the jury was open to decide as the truth or falsity of the statements was ruled to be irrelevant, the jury returned with a verdict of "Not Guilty."
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.
More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.
Do juries have the right to nullify? Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.
Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.
Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.
Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.
If jurors have the power to nullify, shouldn't they be told so? That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.
Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.
On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
jury nullification
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.
When has jury nullification been practiced? The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels, the only issue the court said the jury was open to decide as the truth or falsity of the statements was ruled to be irrelevant, the jury returned with a verdict of "Not Guilty."
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.
More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.
Do juries have the right to nullify? Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.
Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.
Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.
Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.
If jurors have the power to nullify, shouldn't they be told so? That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.
Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.
On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.
fuji said:
This is what I mean. Assuming that the case does in fact go to trial, the crown will have a witness who worked in the establishment and who will testify. They also have incriminating evidence as well. If the owner is then questioned by the crown attorney, i.e. did you operate an escort agency at this location, and what was the nature of the business? Were you aware that sex was being exchanged for money on the premesis etc.. it would be difficult to deny. That's all.
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fuji said:
I don't know... I just imagined the crown calling the defendant to testify, and then the judge saying something to the effect of "the defendant will answer the question." LOL... maybe I'm just watching too much courtroom drama on TV!
drlove said:I don't know... I just imagined the crown calling the defendant to testify, and then the judge saying something to the effect of "the defendant will answer the question." LOL... maybe I'm just watching too much courtroom drama on TV!
The crown is not allowed to do that. The defendent has a right to remain silent. However, if the defendent CHOOSES to go up on the stand and testify, then possibly yes all questions would have to be answered.
If the defendent being put on the stand would lead to a charge of perjury then the defense lawyer is not going to allow that to happen.
The crown have to prove their case beyond a reasonable doubt and they cannot do it by pressuring the defendent to admit to it under threat of perjury. They have to have enough evidence of a crime from their own sources, and that evidence has to have been collected in an acceptable manner.
drlove said:
Ok then you are relying on the credibility of a admitted prostitute to incriminate someone. Really hard to do. I do not make moral judgments of SP's as I view them as morally equal to the customer ( i.e me) But the public at large does, and in a court of law she will be attacked and humiliated by the defence. All kinds of tawdry questions asked. Such as "did you perform oral sex on strangers for money? What about anal sex? How many strangers did you have sex with in a day, over the period you worked there? etc etc etc... all this will strip away credibility...
nottyboi said:
The thing is, she quit after servicing two clients, and claimed that her ex-spouse "forced" her to work there. The agency itself had no knowledge of the circumstances behind her seeking employment when they took her on as an employee. Furthermore, the complainant waited six months after quitting the agency to inform police.
drlove said:
Busted at the beginning of the year. Trial the middle of next year. This sounds like a good Askov (unreasonable delay) defence. This assumes that the delay was the fault of the Crown.
http://csc.lexum.umontreal.ca/en/1990/1990rcs2-1199/1990rcs2-1199.html
LateComer said:
The agency was busted at the start of the year, the owner was arrested, then charged. She entered a plea of "not guily", then went before the judge in September to have a trial date set for the summer of 2009. Now, part of the delay may have been due to the fact that the agency owner lobbied for legal aid, and was turned down. She then appealed. I believe by the time of the plea etc. she had still not retained a lawyer, according to a newspaper article.
LateComer said:
Askov was superseded by Morin.
http://scc.lexum.umontreal.ca/en/1992/1992rcs1-771/1992rcs1-771.html
I'm just surprised the owner tried to get legal aid. Kudos for trying, but still - after almost 19 years in operation she's got to be a millionaire by now. If not, there's something wrong. Second of all, you have to prove you are of little means in order to be approved. I'm sure Legal Aid is aware of what sort of annual revenue can be generated by a popular agency.
