Standard Mischief

So if you are following along with the thread I pointed out on Monday, you’ll notice that I didn’t really received an answer to my question, probably because what I’m looking for really isn’t out there. Zuzu pointed to the Federal Rules of Evidence, but didn’t really explain or point to a well argued essay explaining why juries are supposed to apply the law as written, not as they wish it might be.

Then, of course, she accused me of thread-jacking. Well the topic did wander a bit, but that was never my intent, and I’ll claim I was aided and abetted by some lady who claims she has three years of law school and ten years of federal litigation practice.

The deal is that the Federal Rules of Evidence were adopted well past the William Penn landmark case, and in any event I was looking for the reasoning behind those rules, not the rules themselves.

Before Penn’s case, juries in England were frequently packed with crown supporters or were threatened with punishment unless they issued the proper verdict, in this instance they returned a verdict of not guilty to the charge of preaching an illegal sermon. The judge was not at all pleased and sent Penn back to jail for contempt, and fined and held the jury for three days without food or water.

When the dust had settled, we ended up with not only a common law right to practice a religion of one’s choosing, but also the right to be tried by a juries that could also judge whether or not the law was a just one, or whether it was fairly applied.

Nowadays, in California, after the Voir Dire process, but before the jury is impaneled, they are required to swear an oath:

“Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?”

This roughly translates into “will you be a meat-bot for the judiciary of the state of California?”, as it does not allow for the jury to nullify a poorly applied law or a law that is clearly unconstitutional.

John Silveira wrote an excellent article about California’s effort to only impaneled the meat-bots. Thankfully, Backwoods Home magazine has put the short and worthy-of-your-time article online for me to point you to. Go read it. This is the money quote here, but it does not spoil the ending:

What the state wants are machines and people who think and are predictable like machines. But if this is how justice is to be dispensed in the United States, then God help us.