The Sixth Amendment - Page 2

RightinNYC · 10-16-07, 07:14 PM

Quote:

Originally Posted by Voidwar

So my fate was supposed to rest in the hands of twelve citizens, but this makes it rest on which lawyer was slicker. Unnacceptable shift of power.

The idea, was that anything the government wanted to do to a citizen, they would need 12 citizen's to sign off on it. That is the core idea of a jury system. The slick lawyer's machinations weaken that protection. One lawyer is always better than another, so two adversarial lawyers will very rarely actually "tie" in these machinations. This means that most juries will then be partial, and partial to the side whose lawyer is better at Voir Dire.

Not really. Voir dire is managed by the judge, who can keep or get rid of any jurors he chooses (within reason). Lawyers get a very limited number of challenges and can only argue for the elimination of jurors beyond that with exceptional cause. Your fate still rests in the hands of 12 (mostly) randomly selected citizens.

And think about it this way - even if one side gets an advantage because their lawyer is "more slick," wont that side have the same advantage in the trial for the same reason? It's an inevitable occurrence in a system where people have the right to hire legal counsel.

RightinNYC · 10-16-07, 07:17 PM

Quote:

Originally Posted by Voidwar

A better way was described in Philadelphia in 1789.

Let's do it this way:

Do you have any evidence that indicates that the founding fathers did not intend for there to be voir dire? Because everything I've ever seen indicates to me that they fully understood what voir dire was and intended it to be used at trial.

Voidwar · 10-16-07, 07:20 PM

Quote:

Originally Posted by RightinNYC

Let's do it this way:

Do you have any evidence that indicates that the founding fathers did not intend for there to be voir dire?

I'll go with it's complete absense from the 6th amendment, and it's complete absense from Article III as pretty strong evidence.

Voidwar · 10-16-07, 07:22 PM

Quote:

Originally Posted by RightinNYC

Your fate still rests in the hands of 12 (mostly) randomly selected citizens.

Your fudge on the term "mostly" is critical.

No legitimate authority to change from unmodified to "mostly".

RightinNYC · 10-16-07, 07:24 PM

Quote:

Originally Posted by Voidwar

I'll go with it's complete absense from the 6th amendment, and it's complete absense from Article III as pretty strong evidence.

The 8th Amendment doesn't specifically say whether capital punishment is or is not allowed. Yet, the courts have held that it does allow it because the founding fathers understood "cruel and unusual" not to include all forms of capital punishment.

Similarly, the 6th Amendment doesn't specifically mention voir dire (just like it doesn't mention any of the trillions of other things that courts do, because it would be too long to do so.) However, the courts have held that it does allow it because the founding fathers believed that the 6th included "a trial by jury as understood and applied at common law, and includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted."

That included voir dire.

RightinNYC · 10-16-07, 07:27 PM

Quote:

Originally Posted by Voidwar

Your fudge on the term "mostly" is critical.

No legitimate authority to change from unmodified to "mostly".

The jury pool is already not "random." The vast majority of people with the resources to do so manage to avoid jury duty. That results in a quasi-self-selecting jury pool already.

Voidwar · 10-16-07, 07:29 PM

Quote:

Originally Posted by RightinNYC

However, the courts have held that it does allow it because the founding fathers believed that the 6th included "a trial by jury as understood and applied at common law, and includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted."

That included voir dire.

I understand that certain procedures were "grandfathered in" in this manner.
My point is that one cannot grandfather in a practice that is at direct odds with the 6th. I am ok with "grandfathering", until it explicitly conflicts with the constitution. In my view the process is a direct violation of the 6th's protections. The practice should be challenged and found unconstitutional in light of the 6th.

RightinNYC · 10-16-07, 07:32 PM

Quote:

Originally Posted by Voidwar

I understand that certain procedures were "grandfathered in" in this manner.
My point is that one cannot grandfather in a practice that is at direct odds with the 6th. I am ok with "grandfathering", until it explicitly conflicts with the constitution.

And my point is that it's not in conflict with the 6th. In fact, I would argue that it is necessary to the 6th. It's a matter of language, and the courts have unanimously held in favor of the view that it's necessary.

Quote:

In my view the process is a direct violation of the 6th's protections. The practice should be challenged and found unconstitutional in light of the 6th.

Again, there is not a court in this country that would (or could) find it unconstitutional.

Voidwar · 10-16-07, 07:33 PM

Quote:

Originally Posted by RightinNYC

The jury pool is already not "random." The vast majority of people with the resources to do so manage to avoid jury duty. That results in a quasi-self-selecting jury pool already.

What you describe here is a problem to be solved, not a unalterable "reality" we must operate under.

Voidwar · 10-16-07, 07:35 PM

Quote:

Originally Posted by RightinNYC

Again, there is not a court in this country that would (or could) find it unconstitutional.

I disagree. The explicit language of the 6th prohibits this jury tampering.

Besides, the term is french, reason enough to throw it out