Robert D. Muse
Constitutional Sheriff Candidate
Idaho Criminal & Civil Justice.Net
Idaho Bail Act - 2009
Robert Muse Bail Bonds@gmail.com or 208-697-2167
 
 
 

·  Robert Muse Bail Bonds

 

 

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Idaho Bail Statues

 


 

 

 

Police may Arrest without warrant with law these lawful Idaho Supreme Court approved forms

 

 

19-606. Person arresting may summon assistance BY AN AGENT. Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein including any law enforcement officer.

 

19-2914.

ARREST OF DEFENDANT FOR SURRENDER. At any time before the exoneration of bail, the surety insurance company or its bail agent or the person posting a property bond or cash deposit may empower any person of suitable age and discretion to arrest the defendant at any place within the state by signing an affidavit extending such authority in a form approved by the supreme court.

Agent needs to sign and appoint any law enforcement agency with these 3 documents needed to arrest defendnant if warrant yet not entered into NCIC. Recommend Idaho Respository case copy also to verify a warrant has been issued by court but not necessary.

Affidavitt Power to arrest

Sheriff's Certificate

Notice of Bond Forfeiture

 

 

TITLE 18

CRIMES AND PUNISHMENTS
CHAPTER 74
BAIL JUMPING
18-7401.Bail jumping -- Default in required appearance. A person set at liberty by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place, commits a misdemeanor if, without lawful excuse, he fails to appear at that time and place. The offense constitutes a felony where the required appearance was to answer to a charge of felony, or for disposition of any such charge, and the actor took flight or went into hiding to avoid apprehension, trial or punishment. This section does not apply to obligations to appear incident to release under suspended sentence or on probation or parole.

 

 

S1371   New Department of Insurance Laws

Bail Bond Schedule effective April 15, 2010

CHANGES TO IDAHOBAIL LAW. Effective July 1, 2009 The Idaho Statues and Idaho Criminal Rule 46 

TITLE 19  
 
bullet
In: Re: Amendment Of Idaho Criminal Rule (I.C.R.) 46

CHAPTER 10  TITLE 41 INSURANCE

 

CHAPTER 29

 IDAHO BAIL ACT

 19-2901.

SHORT TITLE. This chapter shall be known and may be cited as the "Idaho

 Bail Act."

 19-2902.

STATEMENT OF POLICY. (1) The legislature finds and declares that:

 (a) Bail, in criminal cases, is a constitutional right subject to certain limitations;

 (b) It is necessary to establish a statewide process to uniformly implement this right and the limitations.

 (2) The purpose of this chapter is to provide a uniform and comprehensive statewideprocess for the administration of bail in criminal cases in order to:

 (a) Ensure the appearance of defendants before the courts;

 (b) Protect the right of defendants to bail, as constitutionally provided; and

 (c) Ensure the protection and safety of victims, witnesses and the public.

 

 19-2903.

RIGHT TO BAIL – LIMITATIONS. Any person charged with a crime who

 is not released on his own recognizance is entitled to bail, as a matter of right, before a pleaor verdict of guilty, except when the offense charged is punishable by death and the proof is evident or the presumption is great. In the discretion of the court, bail may be allowed in thefollowing cases:

 (1) After the defendant is found guilty or pleads guilty and before sentencing;

 (2) While an appeal is pending from a judgment of conviction, an order withholding judgment or an order imposing sentence, except that a court shall not allow bail when thedefendant has been sentenced to death or life imprisonment;

 (3) Upon a charge of a violation of the terms of probation; and

 (4) Upon a finding of a violation of the conditions of release pursuant to section 19-2919,Idaho Code.

 

 19-2904.

BAIL, RELEASE ON RECOGNIZANCE AND CONDITIONS OF

 RELEASE. The court may release a person on his own recognizance or set an amount of bail,and may impose any conditions of release. In making these determinations the court shall consider the following objectives:

 (1) Ensuring the appearance of the defendant;

 (2) Ensuring the integrity of the court process including the right of the defendant to bailas constitutionally provided;

 (3) Ensuring the protection of victims and witnesses; and

 (4) Ensuring public safety.

  

 19-2905.

DEFINITIONS. As used in this chapter, unless the context requires otherwise:

 (1) "Bail" means a monetary amount required by the court to release the defendant fromcustody and to ensure his appearance in court as ordered.

 (2) "Bail agent" means a producer licensed by the state of Idaho in the line of surety insurance who is authorized by an insurer to execute or countersign undertakings of bail inconnection with judicial criminal proceedings.

 (3) "Bail bond" means a financial guarantee, posted by a bail agent and underwritten by asurety insurance company, that the defendant will appear as ordered.

 (4) "Bench warrant" means a warrant issued by the court because the defendant failedto appear as ordered, failed to comply with a condition of release or the sureties are no longersufficient.

 (5) "Cash deposit" means payment in the form of United States currency, money order,certified check, cashier’s check or such other form of payment as provided by the rules of thesupreme court.

 (6) "Certificate of surrender" means a certificate in a form approved by the supreme court that is completed by a surety insurance company or its bail agent, or a person who has posted a property bond or cash deposit, and provided to the sheriff of the county where the action ispending for signature.

 (7) "Conditions of release" means any reasonable restrictions, conditions or prohibitions placed upon the defendant’s activities, movements, associations or residences by the court, excluding the court order requiring the defendant to appear in court.

 (8) "Exoneration" means a court order directing the full or partial release and dischargefrom liability of the surety underwriting a bail bond or the person posting a cash deposit or aproperty bond.

 (9) "Forfeiture" means an order of the court reciting that the defendant failed to appear asordered and stating that bail is forfeited.

 (10) "Order of recommitment" means an order of the court committing the defendant backto the custody of the sheriff.

 (11) "Person" means a natural person, legal corporation, limited liability corporation, partnership, sole proprietorship or any other business entity recognized by the state of Idaho.

 (12) "Property bond" means a financial guarantee approved by the court, secured byproperty, real or personal, that the defendant will appear in court as ordered.

 (13) "Readmittance to bail" means an order of the court allowing the defendant to postnew bail following an order of revocation.

 (14) "Recommitment" means the return of the defendant to the custody of the sherifffollowing revocation or forfeiture of bail.

 (15) "Reinstatement of bail" means an order of the court allowing the defendant to bereleased on the same bail previously posted that has been ordered forfeited.

 (16) "Revocation of bail" means an order by the court revoking the defendant’s release onbail.

 (17) "Surety insurance company" means an admitted insurer authorized in the line ofsurety pursuant to title 41, Idaho Code.

 (18) "Surrender" means the voluntary surrender or delivery of the defendant into thecustody of the sheriff of the county where the action is pending.

  

 19-2906.

ADMISSION TO BAIL. Admission to bail is the order of a competent court

 that the defendant shall be released from actual custody of the sheriff upon posting bail.

 

 19-2907.

POSTING BAIL – SUFFICIENT SURETIES. (1) The posting of bail consists

 of filing sufficient sureties with the court, as required by the court, to ensure the defendant’sappearance. Sufficient sureties shall consist of any one (1) of the following:

 (a) A bail bond;

 (b) A property bond; or

 (c) A cash deposit.

 (2) Although bail may be posted in the form of a cash deposit pursuant to the provisionsof subsection (1) of this section, a defendant shall not be required to post bail in the form of a cash deposit.

 

 19-2908.

CASH DEPOSIT APPLIED TO PAYMENTS OF FINES, FEES, COSTS

 AND RESTITUTION. When bail has been posted by cash deposit and remains on deposit atthe time of the judgment, the clerk of the court shall, under the direction of the court, apply themoney in satisfaction of fines, fees, costs and restitution imposed in the case and fines, fees,costs and restitution that have been imposed against the defendant in any other criminal action,and after satisfying the fines, fees, costs and restitution, shall refund the surplus, if any, to theperson posting the cash deposit.

  

 19-2909.

PROPERTY BOND. A property bond may be posted by the defendant or third

 person on behalf of the defendant. For real property to qualify as sufficient surety, it must belocated in the state of Idaho and must have an equity value, after deducting the outstandingbalance of any existing liens and encumbrances, in the amount of the bail set by the courtplus anticipated collection costs. Acceptance of a property bond is in the discretion of thecourt. A property bond posted with and accepted by the court pursuant to this section, andrecorded, shall constitute a consensual lien on the property pursuant to section 55-1005(3),

 Idaho Code. All fees shall be paid by the person posting the property bond. An order of thecourt exonerating the property bond shall extinguish the lien and cancel the promissory note.

 The property bond and the promissory note shall be in a form approved by the supreme court.

 

 19-2910.

SUBSTITUTION OF SUFFICIENT SURETIES. At any time before an order

 of forfeiture, the court may allow the defendant to substitute any type of surety identifiedin section 19-2907,Idaho Code, for the previously posted surety. Upon substitution, thepreviously posted surety shall be exonerated.

 

 19-2911.

RELEASE OF DEFENDANT ON POSTING BAIL. Upon the posting of bail

 in the amount set by the court, the defendant shall be released from the actual custody of the sheriff.

 

 19-2912.

INCREASING OR REDUCING BAIL. After a defendant has been admitted

 to bail, the court in which the charge is pending may, upon good cause shown, increase or reduce the amount of bail. If the amount is increased, the court shall order the defendant to becommitted to the actual custody of the sheriff until bail is posted in the increased amount. Anyprevious bail posted in the case shall be exonerated by the court. If the defendant applies for a reduction of the amount of bail, notice of the application shall be served upon the attorney for the state and the person posting bail within five (5) business days.

 

 19-2913.

SURRENDER OF DEFENDANT. (1) At any time before forfeiture of bail, a

 surety insurance company or its bail agent or person posting a property bond or cash depositmay surrender the defendant to the sheriff of the county where the action is pending. Upon thesurrender of the defendant, the sheriff shall accept and incarcerate the defendant in lieu of thebail originally set by the court.

 (2) At the time of surrender of the defendant to the sheriff, the surety insurance companyor its bail agent or person posting a property bond or cash deposit shall provide the sheriff with a certificate of surrender.

 (3) The surety insurance company or its bail agent or person posting a property bond or cash deposit shall, within five (5) business days of the surrender of the defendant, file with the court in which the action or appeal is pending the certificate of surrender and shall deliver a copy of the same to the attorney for the state. The court shall there upon order the bail exonerated.

 (4) At any time before forfeiture of bail, a defendant may surrender himself to the sheriff of the county where the action is pending. Upon surrender by the defendant, the sheriff shall accept and incarcerate the defendant in lieu of the bail originally set by the court.

 

 19-2914.

ARREST OF DEFENDANT FOR SURRENDER. At any time before the

 exoneration of bail, the surety insurance company or its bail agent or the person posting aproperty bond or cash deposit may empower any person of suitable age and discretion to arrest the defendant at any place within the state by signing an affidavit extending such authority in a form approved by the supreme court.

 

 19-2915.

FORFEITURE OF BAIL. (1) If without sufficient excuse the defendant fails

 to appear before the court as ordered, the court shall immediately:

 (a) Enter the defendant’s failure to appear in the minutes;

 (b) Order forfeiture of the bail; and(c) Issue a bench warrant for the arrest of the defendant.

 (2) The clerk shall provide the person posting bail written notice of the order of

 forfeiture by mailing notice within five (5) business days of the order of forfeiture to the lastknown address of the person posting bail or that person’s designated agent.

 (3) If the court quashes the bench warrant within one hundred eighty (180) days after theorder of forfeiture, the forfeiture of bail shall be set aside and the court shall notify the personposting bail of the setting aside of the forfeiture within five (5) business days of the date of theorder quashing the bench warrant and reinstating the bail.

 

 19-2916.

SETTING ASIDE ORDER OF FORFEITURE AND REINSTATING

 BAIL. If the defendant appears in court after the entry of the defendant’s failure to appear and satisfactorily explains his failure to appear, the court may set aside the order of forfeiture andreinstate bail. Before reinstatement of bail, the court shall quash any bench warrant and setaside any order of forfeiture of the bail. The court shall provide written notice of reinstatementof bail to the person posting bail or to that person’s designated agent within five (5) businessdays of the order reinstating bail.

 

 19-2917.

MOTION TO SET ASIDE FORFEITURE. Pursuant to a motion filed within

 one hundred eighty (180) days after an order of forfeiture as provided in section 19-2915,IdahoCode, the court that ordered forfeiture may direct that the order of forfeiture be set aside, inwhole or in part, upon such conditions as the court may impose, as provided by rules adoptedby the supreme court, if it appears that justice so requires. If the court sets aside the order offorfeiture, then it may:

 (1) Reinstate the bail;

 (2) Exonerate the bail;

 (3) Recommit the defendant to the custody of the sheriff and set new bail; or

 (4) Release the defendant on his own recognizance.

UPDATED NEW SECTION 

19-2918.  REMITTANCE OF FORFEITURE -- PAYMENT OF BAIL. (1) The person posting bail shall pay to the clerk of the court the amount of bail ordered within five (5) business days after the expiration of the one hundred eighty (180) day period following the order of forfeiture of bail unless:

(a)  The order of forfeiture has been set aside by the court;

(b)  The bail has been exonerated by the court; or

(c)  A motion to set aside the order of forfeiture or a motion to exonerate bail has been timely filed, together with a request for hearing, and has not been decided by the court. If the motion is decided and denied by the court more than one hundred eighty (180) days after the order of forfeiture, then the person posting bail shall pay the amount of bail to the clerk of the court within five (5) business days after the entry of the court's order denying the motion. A timely filed notice of appeal and motion to stay the forfeiture stays the obligation to remit payment until five (5) business days after the entry of the court’s order denying the motion to stay or, in the event such motion is granted, five (5) business days following the final determination of the appeal.

(2)  If cash is deposited in lieu of bail, the clerk of the court shall pay the cash deposit to the county treasurer. If the person posting a bail bond or property bond that has been forfeited does not pay the amount of bail within the time provided in this section, then the order of forfeiture shall become a judgment against the person posting the bail bond or property bond.

(3)  After the notice required by section 19-2915, Idaho Code, in the event that a surety insurance company fails to pay the amount of any bail forfeited within the time required by this section, the administrative district judge may order the sheriffs and clerks of all counties in the judicial district not to accept the posting of any new bail bonds from such company until the amount of bail forfeited has been paid. An administrative district judge in another district may also order the sheriffs and clerks of all counties in his district not to accept the posting of any new bail bonds from such company until the amount of bail forfeited has been paid.

(4)  If the administrative district judge has reasonable cause to believe that a bail agent has committed any of the actions that could form the basis for a suspension of the bail agent’s license pursuant to section 41-1039(4), Idaho Code, the court shall immediately refer the matter to the director of the department of insurance for appropriate disciplinary action pursuant to sections 41-1016and 41-1039, Idaho Code, and may enter an order that the sheriffs and clerks of all counties in the judicial district shall not accept bail bonds submitted by that bail agent until the director has rendered a decision as to whether to suspend the bail agent’s license pursuant to section 41-1039(4), Idaho Code. The director shall immediately notify all judicial district trial court administrators of such decision.

 

  19-2919.

REVOCATION OF BAIL – VIOLATION OF CONDITIONS OF

 RELEASE. (1) Upon its own motion or upon a verified petition alleging that the defendant will fully violated a condition of release, the court may issue a bench warrant directing that thedefendant be arrested and brought before the court for a bail revocation hearing, or the courtmay order the defendant to appear before the court at a time certain. At the bail revocationhearing, if the court finds that the defendant willfully violated a condition of release and thedefendant is present before the court, the court may revoke the bail and remand the defendant

 to the custody of the sheriff. At any time thereafter, the court may reset bail in the same ora new amount and impose conditions of release. If the defendant fails to appear at the bailrevocation hearing, the court shall issue a bench warrant for the defendant’s arrest.

 (2) In its order revoking bail, the court shall recite generally the facts upon which

 revocation of bail is founded and order that the defendant be recommitted to the custody ofthe sheriff of the county where the action is pending to be detained until legally released. Thecourt may reset bail in the same or a new amount and impose any appropriate conditions ofrelease.

 (3) The court may deny readmittance to bail if the court finds that the defendant hasintimidated or harassed a victim, potential witness, juror or judicial officer or has committedone (1) or more violations of the conditions of release and such violation or violationsconstituted a threat to the integrity of the judicial system.

 

 19-2920.

REVOCATION OF BAIL – INSUFFICIENT SURETY. (1) Private surety.

 Upon the filing of a verified petition alleging that the bail posted by a cash deposit or property bond has become insufficient by reason of bankruptcy, death or any other reason, the courtmay order the defendant and the private surety to appear before the court at a time certain fora bail revocation hearing. At the bail revocation hearing, if the court finds that the privatesurety is insufficient, the court may revoke the bail and recommit the defendant to the custody

 of the sheriff. If the defendant fails to appear for the bail revocation hearing, the court shallimmediately issue a bench warrant for the defendant’s arrest.

 (2) Surety insurance company. Upon the filing of a verified petition alleging bail postedby a surety insurance company has become insufficient by reason of bankruptcy, receivership,suspension or revocation of authority to conduct business in the state of Idaho or any otherreason, the court may order the defendant and the commercial surety or its agent to appearbefore the court at a time certain for a bail revocation hearing. At the bail revocation hearing,if the court finds that the commercial surety is insufficient, it may revoke the bail and recommit

 the defendant to the custody of the sheriff. If the defendant fails to appear for the bailrevocation hearing, the court shall immediately issue a bench warrant for the defendant’s arrest.

 (3) In its order revoking bail, the court shall recite generally the facts upon which

 revocation of bail is founded and order that the defendant be recommitted to the custody ofthe sheriff of the county where the action is pending to be detained until legally released. Thecourt shall set bail in the same or a new amount and impose any appropriate conditions ofrelease.

 

 19-2921.

ORDER OF RECOMMITMENT – READMITTANCE TO BAIL. In its order

 revoking bail, the court shall recite generally the facts upon which revocation of bail is foundedand order that the defendant be recommitted to the custody of the sheriff of the county wherethe action is pending to be detained until legally released. If the offense is bailable, the courtshall fix bail in a new amount and impose any appropriate conditions of release.

 

 19-2922.

EXONERATION OF BAIL. The court shall order the bail exonerated in the

 following circumstances:

 (1) The defendant has appeared for all court proceedings as ordered and all charges forwhich the bail has been posted have been resolved by acquittal, dismissal or sentencing;

 (2) Written notice of the court’s order of forfeiture was not mailed to the person postingbail or his designated agent within five (5) business days of the order of forfeiture;

 (3) Written notice of the court’s order to set aside the order of forfeiture and reinstatingbail was not mailed to the person posting bail or his designated agent within five (5) businessdays of the order;

 (4) Before any order of forfeiture, the defendant has been surrendered or has surrenderedhimself to the sheriff of the county where the action is pending and the certificate of surrenderhas been filed with the court as required in section 19-2913, Idaho Code;

 (5) The defendant has appeared before the court within one hundred eighty (180) daysof the court’s order of forfeiture, unless the court has set aside the order of forfeiture and hasreinstated bail pursuant to section 19-2916, Idaho Code; provided, that in those cases where  the defendant was not returned by the person posting bail to the sheriff of the county wherethe action is pending, the court may condition the exoneration of bail and the setting aside ofthe forfeiture on payment by the person posting bail of any costs incurred by state or localauthorities arising from the transport of the defendant to the jail facility of the county where the

 charges are pending. Such costs shall not exceed the amount of the bail posted;

(6) The court has revoked bail and has ordered that the defendant be recommitted.

 

 19-2923.

SEVERABILITY. The provisions of this act are hereby declared to be

 severable and if any provision of this act or the application of such provision to any person orcircumstance is declared invalid for any reason, such declaration shall not affect the validity ofthe remaining portions of this act.

 

  Forms  Affidavit of Appt to Arrest    Certificate of Surrender     

                Promissory Note     Property Bond

   

https://www.oathkeepers.org/

 

(originally published on LewRockwell.com)

Citizens in our (once) free republic founded under the English common law system, have both the power and the right to vote according to conscience when they sit on a jury and can vote not guilty even in the face of the law and in the face of the evidence. The defendant also has a right to expect that his jury will be fully informed of their rightful power to vote “not guilty” if they believe justice requires it, regardless of the evidence. Anything less is not a real jury trial.

The jury issues no opinion, gives no explanation of its decision. It simply renders its verdict, and if the verdict is “not guilty,” that acquittal cannot be questioned or overturned by any court. It is telling that a conviction can be overturned, but an acquittal cannot – the deck is stacked on the side of the liberty of the individual on trial. While a judge can overturn a jury conviction that in his judgment is unsupported by the evidence, or where the jury harbors prejudicial animus toward the defendant, the judge cannot overturn an acquittal even if the evidence is overwhelming – even if the defendant admits on the stand that he did the actions of which he is accused.

A landmark case in jury history is that of William Penn, the Quaker preacher who would later found Pennsylvania. He was put on trial in England for the “crime” of preaching a non-government approved religion on a public street corner. He did not deny that he had preached as a Quaker. He proudly proclaimed it. There was no doubt that English law at the time considered his actions criminal. That too was plain. And yet, the jury acquitted him in spite of the obvious, undisputed facts, and in the face of the clear law. That jury was initially held in contempt and jailed by the trial judge, but on appeal, the English appellate courts ruled that the jury has an absolute power to acquit despite the facts and in the face of the law, and that it cannot be punished for exercising its power. That acquittal helped to establish the free practice of religion.

The same was true in the celebrated Zenger trial in the American colonies, where Zenger, a newspaper editor, did not deny he had published an editorial severely criticizing the royal governor. The facts were undisputed. Under English law at the time, mere criticism of government officials, even if true, was still considered libel, and could be punished. And yet, despite both the law and the facts being abundantly clear, the jury acquitted Zenger. That acquittal helped establish legal protection for freedom of the press, and freedom of speech, such that only knowingly false statements can be considered libel.

The Fugitive Slave laws criminalized the underground railroad. Abolitionists accused of helping runaway slaves were often set free by sympathetic jurors voting according to conscience, nullifying the law.

One way to think of the jury is that it is effectively a fourth branch of government, sovereign in its own realm. Separation of powers requires that its powers and immunities remain inviolate. In this sense, the jury has as much a power to set even a “guilty” man free as a governor using the power of clemency, or as a President using his “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” under Article II, Section 2 of the Constitution. That power is also absolute, except in cases of impeachment.

It’s telling that modern power elites don’t scream and yell about governors and Presidents having such an absolute power to set even a clearly “guilty” man free. When fellow elites within government do it, it is accepted. But when the people, as a jury, do precisely the same thing, elites gnash their teeth and shrilly warn of impending chaos and anarchy (as if that were a bad thing!), crying crocodile tears about all the supposed injustice that will result if the jury does something similar to what governors and presidents do at will.

The plain fact is our entire legal system was originally designed to favor liberty, with discretion built in at every level, from the beat cop, to the prosecutor (who has a responsibility to see that justice is done, and that sometimes means not prosecuting even in a clear case), to the jury, to the judges who can overturn an unjust conviction (such as by ruling the law to be unconstitutional as applied), to the governor and/or President who can overturn even a “just” conviction and set a certifiably guilty man free. As Hamilton stated in Federalist 74, in reference to the power of Pardon:

“The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

Just so. And as it is with the power of pardon, so it is with the power of the jury.

The scales of justice are meant to be tipped on the side of liberty, with “easy access to exceptions in favor of unfortunate guilt” built in at each step.

Another way of looking at the jury is that it is much like the militia, since it too is a vital public institution where the people directly participate by being their own guardians. A people who are their own guardians in the militia cannot be tyrannized, however bloodthirsty a usurping tyrant may be. Likewise, a people who are their own judges of guilt, their own judges of the law as applied to that case, and their own guardians of the liberty of their fellows by serving on a jury, cannot be tyrannized, however bloodthirsty the minions of the usurping state may be. When a jury is aware of its power, they can stop the state cold, however much it lusts for convictions.

That absolute power to nullify has always been the jury’s power – it is, in fact, the very core of what a jury does. When I (Stewart) was a student at Yale Law School, my procedure professor, Owen Fiss, openly acknowledged that a jury is not merely a fact finder. He pointed out that if that were all a jury were for, we could have professional fact finding juries, made up of forensic experts, handwriting analysis experts, voice analysis experts, etc. who would be far more “efficient” fact finders, working together on one case after another.

 

Though Professor Fiss, being an elitist liberal, didn’t trust juries and instead considered judges “the “embodiment of public reason” (I know, I know, amazing that someone so brilliant can be so blind), he was at least honest enough to admit that the jury is there to serve as a populist, peoples’ check on government power. It didn’t make sense any other way. What Professor Fiss could not see is that the virtue of the jury is precisely the fact that it does not come from some elite segment of society out of touch with the “unwashed masses.” It is made up of average people who will never sit together again on the same jury. They come together only once, to do justice and then to depart. The jury is not a repeat player in the system, like judges, lawyers, and hired-gun expert witnesses. It cannot be influenced by special interests, it has no institutional turf to defend, no reason to go along to get along with backroom deals, and no desire to rack up a conviction record to further political ambitions.

And the real purpose of that unique, independent assembly of average people is to stand in between an accused and the mighty state, as the last shield against tyranny short of recourse to arms. And like David standing in front of Goliath, it does not matter how powerful the state is, however air-tight its case, however artfully it has stacked the laws against the accused, however unconstitutional its manipulations, however blood-thirsty its prosecutors, or however complicit its judges. However much the state wants to strip the life, liberty, or property from the lone defendant, it can still be stopped by that one jury. Just a handful of citizens, if they know their true power, can grind the machine to a halt, and stop it cold, at least in that one case … if they but know of their own power.

And therein lies the problem. Though that absolute power to acquit is part and parcel of traditional trial by jury – is in fact inseparable from it – judges, prosecutors and the power elite have always resented this fact and have tried to suppress it. In effect, there has long been a power struggle between the people, seeking to preserve their rights and powers, and established state power seeking to usurp the power of the people and to enhance its own power. Despite the clear, well settled power of the jury to acquit, willful judges have cleverly argued that while the jury has the absolute power to acquit, they don’t have a right to (so say the crafty judges) and so judges are not required to tell the jury of the power it clearly has. But they don’t just omit that information, they actively mislead the jury by telling them the opposite – that they must convict if they find such and such facts to have been proven, that they must follow the law as the judge explains it, and that they may only consider the evidence presented to them. In other words, the judges, and the prosecutors, lie to the juries.

First, during jury selection (voir dire) the jurors are grilled by the prosecutor and the defense attorneys, and are often asked very intrusive personal questions. Seeking the lowest common denominator, prosecutors and judges eliminate intelligent, aware people, who are routinely eliminated via “pre-emptive strikes” which require no explanation, or “for cause.”

And, an increasingly common question is something like: Do you believe that the jury can judge the law? Have you heard of jury nullification? Can you agree to set aside your own convictions and follow the law, and convict the defendant if the evidence proves guilt? If you wish to avoid jury duty, an answer to the effect that Yes, you do understand your right to vote your conscience, will get you sent home. But, if instead, you wish to be seated, what should you do? First, say as little as possible. Do not volunteer information.

So, if the judge asks you if you can apply the law as he explains it, say “Yes.” You may believe the judge when he says “this is what the law is” (though judges will disagree on points of law) but no one can force you to convict against your conscience and better judgment. Certainly you can follow the judge’s instructions, so you are not lying by saying “yes” when asked that question, but you also know the well established truth that you can also acquit even in the face of the law as given by the judge, and in spite of the facts. You can just keep that knowledge to yourself without volunteering it.

 

Some may call this taking a “mental reservation” as in, Question: “Can you follow my instructions on the law?” Answer: “Yes” – but with a mental reservation (to yourself) of: I may believe your description of the statute law, but the higher law is the Constitution, if there is a conflict.

Others see it as simply retaining the knowledge of the fact that a jury can acquit even in the face of the judge’s instructions – which is well settled law. No acquittal can be overturned, even if the jury didn’t follow the law. The statute law may be as the judge describes it, but the judge has no power to dictate a verdict of “guilty” to the jury. If the judge requires an “oath” of the jurors which requires them to follow the law as given by the judge and to convict if the facts are proven, that oath is a false oath and is not enforceable.

As the Penn trial established hundreds of years ago, jurors may not be punished for their verdict. An attempt to punish a Colorado juror (Laura Kriho) with contempt of court for not being forthright during jury selection questioning (voir dire) ended when she was released by an appeals court ruling.

However, what has occasionally happened is that seated jurors have been dismissed for refusing to discuss a possibility of finding the defendant guilty, taking a clear jury nullification stance. The United States Court of Appeals for the Second Circuit held, in 1997, that if you insist that you will acquit regardless of the evidence, you can be removed for being “incapable” of being impartial. However, if you express “reasonable doubt” about the evidence, or the credibility of the witnesses and informants, or the credibility of the police, in addition to questioning whether the law itself is unjust, the judge cannot remove you from the jury, because they can’t prove that you were determined to acquit regardless of the evidence. You might also suspect that evidence favorable to the defense has been withheld from the jury.

Jurors should be aware that if an acquittal is not possible, a hung jury is an acceptable outcome if a juror believes it necessary to prevent a conviction that would be unjust. A series of hung juries sends a signal to the legislature and to prosecutors that a significant portion of the population does not support that law. A mistake jurors sometimes make is to throw the prosecution a bone by convicting the defendant on a “lesser charge.” (Prosecutors often multiply charges on the hope that something will stick, and to encourage a plea bargain.) That can cost the defendant years in prison if the judge so decides at sentencing. If justice requires it, nothing short of an acquittal or hung jury on all counts is appropriate. It can take intestinal fortitude to stand alone but a single juror can hang the jury.

The power of the jury to vote according to conscience and judge the merits, fairness, constitutionality and applicability of the law itself, is the only real, undiluted power the individual citizens have in our system of government. If we are engaged in a struggle for our fundamental rights against governments on all levels, and we are, then we must view our role as partisan guerrillas, and we have a powerful yet peaceful tool at our disposal. It has been hidden from us, and we are intimidated into thinking it is not our right, but if we will summon the courage to grasp it, we can use jury veto power, or jury nullification, as a weapon in defense of liberty.

Frankly, when awake and aware lovers of liberty choose not to serve on a jury, they are leaving the battlefield with Goliath still standing, jeering at them as they walk away. By not serving, they are denying to themselves one of the critical “boxes of freedom” and a chance to sling one right between Leviathan’s eyes. If they don’t take that shot, what is left? Not much. The ballot box is a joke, the soap box, while still there, is also under relentless attack, with mainstream media now nothing more than Mordor’s mouthpiece. Why give up the jury box to the enemy? You know what comes next.

Serving on a jury should be viewed as a form of liberty guerrilla warfare in the current “soft” or cold war between the forces of liberty and the forces of tyranny. We’d better use it while we can before the war goes hot. Besides, It’s good practice. We need to exercise our liberty muscles and our own cunning and resolve in the face of adversity. Step into the ring!

We must close with the enemy and battle him in every arena, including in the courtroom. Give Leviathan no safe place, no place to let down his guard, and instead take the fight straight to him in a place where he thought he was supreme and could not be defeated. One juror, just one, can shut down all the gears, all the levers, and all the apparatus of unjust power, and make it stop. One juror can throw a critical monkey-wrench into the works. And if enough jurors do that, the cursed machine will be prevented from working at all. Just you, a lone liberty guerrilla, in a peaceful, bloodless, mini-revolution of conscience, can drive a dagger into the soft underbelly of the beast and set someone free. Talk about focus of effort! There can be no better time spent in the struggle to directly stop oppression.

April 25, 2011

Don Doig [send him mail] is a co-founder and vice president of the Fully Informed Jury Association (FIJA). Stewart Rhodes [send him mail] is an Army Airborne veteran, former member of Rep. Ron Paul’s DC staff, a 2004 graduate of Yale Law School, and is the founder and president of Oath Keepers.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

NOTE FROM STEWART:

Sincere thanks go out to Don Doig, Founder of FIJA, for inviting me to co-author this article, and to Lew Rockwell, of LewRockwell.com for publishing it at his site.  The jury is a critical institution.  It is as fundamentally critical to liberty as is the militia, and as is our right to bear arms.  As the saying goes, we have “four boxes of liberty”: the soap box (freedom of speech and assembly), the ballot box, the jury box, and the cartridge box.  We must guard each of them with equal resolve and jealousy, for they truly are our great shields against tyranny.

Denial of the ancient right of jury trial was one of the causes of our Revolution, as was clearly stated in The unanimous Declaration of the thirteen united States of America, written July 4, 1776 (commonly known as the Declaration of Independence), where the Founders condemned the King “For depriving us in many cases, of the benefit of Trial by Jury” and for claiming the power “to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws” (courts of admiralty).    Jury trial was an ancient right of Englishmen, considered by our Founders to be a non-negotiable right of the colonists, for which they were willing to fight and die.

And yet, even now it is under relentless assault, both by willful judges and prosecutors who deny the full right and power of the jury, as  discussed in our article, and and also by willful Presidents who illicitly claim the power to strip Americans of this fundamental right by designating us “unlawful combatants.”   First Lincoln, then FDR, and now Bush and Obama have claimed the power to apply the international laws of war to American citizens, precisely as if we were foreign enemies in wartime, and try us by military tribunal rather than by jury in a civilian, Article III court.   The more things change, the more they remain the same.  Our forefathers fought a bloody Revolution against such outrageous claims of power, and yet here we are, facing the same claim of power to subject us to a jurisdiction FOREIGN to our Constitution – the international laws of war.   And under this doctrine, Obama also claims the power to simply assassinate us, if he thinks it necessary for “national security.”

We must stand like a rock and refuse to give even a shred of legitimacy to any such outrageous claims of power, regardless of which party is in the White House.   And if the political and legal elites persist in this claim of power, we must resist it with as much fire and defiance as our Forefathers.   The right to jury trial is our last shield of liberty, and our last resort short of an appeal to arms and to the God of hosts.  Remember that, and act accordingly.  – Stewart Rhodes