HB408 By Representative McClammy RFD Judiciary Rd 1 15-MAR-16

SYNOPSIS: Existing law does not specifically require the court in a criminal proceeding tried before a jury to permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

This bill would require the court in a criminal proceeding tried before a jury to permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

This bill would require posting in each courthouse and courtroom therein of the right of a jury to judge the facts and the application of the law in relation to the facts in controversy.

This bill would provide a criminal penalty for a violation.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to juries; to require the court in a criminal proceeding tried before a jury to permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy; to require posting in each courthouse and courtroom therein of the right of a jury to judge the facts and the application of the law in relation to the facts in controversy; and to provide for a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. The Legislature finds and declares the following:

(1) While it is one thing for a Legislature to enact a statute, it is often another thing entirely to insure that the statute is properly administered free of judicial rewriting.

(2) In Standard Oil Co. v. United States, 31 S.Ct. 502, 533 (1910) (Justice Harlan, concurring in part and dissenting in part) wrote: "After many years of public service at the national capital, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad in our land a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction."

(3) The Legislature, both at the federal and state levels, has the power to rein in such judicial misbehavior.

(4) A principle of preeminence in federal jurisprudence is that federal courts are courts of limited jurisdiction; the exercise of federal jurisdiction is proper only when prescribed by Congress. *fn4 Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376, 60 S. Ct. 317, 319, 84 L. Ed. 329 (1940); Edwards v. Selective Service Local Board No. 111, 432 F.2d 287, 290 (5th Cir. 1970), Cert. denied, 402 U.S. 952, 91 S. Ct. 1637, 29 L. Ed. 2d 122 (1971). A corollary to this principle is that Congress may withhold from the federal courts jurisdiction over a class of cases even though the judicial power of the United States, as described in article III, § 2 of the Constitution, includes that class. Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L. Ed. 1147 (1850); Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 1 L. Ed. 718 (1799). Marshall v. Gibson's Products Inc., 584 F.2d 668 (5th Cir. 1978).

(5) The Alabama Legislature has the same power to prescribe the jurisdiction of the state's courts because, under the new Judicial Article of our Constitution, the circuit court has original jurisdiction in all cases, criminal and civil, unless the Legislature provides otherwise. Rex M. Henderson v. State, 616 So. 2d 406 (Ala. 1993)

(6) Only the Legislature has the authority to alter the jurisdiction of circuit courts. Ex parte Gunn, No. 1051754 (Ala. 2007).

(7) Some of the history and comments regarding jury nullification bear repeating. "Jury nullification" simply means the power of the jury to reject a law or the judge's instructions and return a "not guilty" verdict if they are so inclined, and prior to our Civil War, this power was well-known.

(8) An attorney could argue law to the jury before the court gave instructions. Stettinius v. United States, Fed Car. No. 13, 387 (C.Ct.D.C. 1839) 22 Fed. Car. 1322, 1333 quoting U.S. v. Fenwick Fed Car. No. 15, 086 (1836). Judges in some western and southern states were not allowed to state law (to overcome judicial interference). 5 The Law Reporter 1, 10 (1842).

(9) The United States Supreme Court later ruled that jurors did not have to be informed of their right to nullify bad laws and unjust convictions. Sparf and Hansen v. United States, 15 S.Ct. 273 (1895) (i.e., the judges were entitled to conceal that fact from the jury).

(10) A later Supreme Court, Horning v. District of Columbia, 41 S.Ct. 53, 54 (1920), admitted that jury has the power to bring in verdict in the teeth of both law and facts.

(11) Later courts perpetrated the concealment doctrine such as U.S. v. Calhoun, 49 F.3d 231, 236 n.6 (6th Cir. 1995), jurors do not have to be informed of power or possible sentence; even defense counsel is "muzzled" in this regard, Scarpa v. Dubois, 38 F.3d 1, 11 (1st Cir. 1994), Jurors possess raw power...defense counsel may not press for [W]here a matter of law is complicated with matter of fact, the jury have a right to determine both. Andrew Hamilton, quoted in The World's Best Orations, Volume 6, page 341 (1923).

(12) What judges today are careful to conceal from jury members is that judges are the chief competition to the jury. Moore, The Jury, Tool of Kings, Palladium of Liberty, page 159 (1973).

(13) The jury is, above all, a political institution, and it must be regarded in this light in order to be duly appreciated. Alexis de Tocqueville, Democracy in America 293 (P. Bradley rev. ed. 1945) (1835).

Section 2. (a) In all criminal proceedings tried before a jury, the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

(b) In order to insure judicial compliance with this act, the following shall be applicable:

(1) This statute shall be prominently displayed in every courthouse and every courtroom in this state.

(2) Each judge shall instruct the jury as follows:

"The laws of this state are established by the vote of the duly elected representatives of your Legislature and are to be presumed as being representative of the will and purpose of the people of this state. As the will and purpose of the people change, our system of government assumes that the representatives of the people will adjust the laws governing the people accordingly. Sometimes, however, laws are passed that do not represent the will of the people, or laws are interpreted in ways that exceed the original scope and intention of the law when it was created. If you as the jury find the evidence shows the defendant violated the law, but you disagree with the law you are being asked to consider as part of your deliberations, and believe such a law should not be enforced, then you have the legal authority to return a verdict of not guilty on the ground of Jury Nullification.

"Jury nullification is nothing less than a rejection of a law of this state that has been passed by the state Legislature and signed by the Governor, and for this reason it should never be undertaken lightly. Nevertheless, jury nullification also provides an opportunity for you, as citizens of this state, to inform your government that the laws the defendant is charged with violating exceeds what you consider appropriate and acceptable in our society and should be either repealed or revised.

"If you choose to find the defendant not guilty by reason of jury nullification, then you should check the box marked jury nullification on the verdict form."

(3) Failure to give this instruction shall result in a mistrial.

(4) Failure to give such an instruction shall be a Class C misdemeanor which shall result in prosecution and a minimum three-day jail sentence which shall be mandatory, and may not be suspended.

(5) Failure to give such an instruction shall be an impeachable offense.

(6) No Alabama State Supreme Court Justice, Appellate Court Judge, or Circuit Court Judge may interpret this statute.

(c) Each justice and judge of this state shall read the following and by oath or affirmation confirm that they understand the following concerning jury nullification, namely:

(1) "Tis most true, Jurors are Judges of matters of Fact that is their proper Province, their chief business but yet not excluding the consideration of matter of Law, as it arises out of, or is complicated with, and influences the Fact. For to say, they are not at all to meddle with, or have respect to Law in giving their Verdicts, is not only a false position, and contradicted by every days experience but also a very dangerous and pernicious one, tending to defeat the principal end of the Institution of Juries, and so subtilly to undermine that which was too strong to be batter'd down." Sir John Hawles, The English-man's Right, pp. 10-11 (1680).

(2) "The office of a judge is...not to make any law by strains of wit, or forced Interpretations; but plainly and impartially to declare the Law already established." Sir John Hawles, The English-man's Right, p. 10 (1680).

(3) "[T]he office of a Judg (as Cook well observes) is jus dicere, not jus dare; not to make any Laws by strains of wit, or forced Interpretations; but plainly and impartially to declare the Law already establisht." Sir John Hawles, The English-mans Right, p. 10 (1680).

(4) "But if by finding against the Direction of the Court in matter of Law, shall be understood, that if the Judge having heard the Evidence given in Court, (for he can regularly know no other, though the Jury may) shall tell the Jury upon this Evidence, the Law is for the Plaintiff, or the Defendant, and the Jury are under pain of Fine and Imprisonment to Find accordingly; then 'tis plain the Jury ought of Duty so to do. Now if this were true, who sees not that the Jury is but a troublesome Delay, of great Charge, much Formality, and no real use in determining right and wrong, but meer Ecchos to sound back the pleasure of the Court; and consequently that Tryals by them might be better abolish'd than continued? which is at once to spit Folly in the Faces of our Venerable Ancestors, and enslave our Posterity." Sir John Hawles, The English-man's Right, pp. 28-29.

(5) "[F]or the Law of England hath not placed Tryals by Juries to stand between men and Death or Destruction to so little purpose as to Pronounce men Guilty, without regard to the nature of the Offence, or to what is to be Inflicted thereupon." Sir John Hawles, The English-man's Right, p. 39.

Section 3. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Criminal Law and Procedure

Juries and Jurors

Courts