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Edited on Tue Apr-20-10 01:11 PM by Deep13
1. Jury nullification is illegal. Jurors swear an oath to comply with the judge's instructions. If the court tells you that if the state proves A, B and C beyond a reasonable doubt, that you must convict, then if there really is no real doubt in your mind about A, B and C, then you must convict. Don't let the lack of enforcement of this requirement make you think that it is perfectly legal. It's not.
2. Ohio has not accepted so-called open file discovery. I say "so-called" because the proposal is not truly open file. Frankly, with the Supreme Court of Ohio's recent decision on the ethical responsibility to disclose beyond what is required by R. 16 (held 6-1: there isn't any) I consider this a dead issue. There is no Constitutional right to any discovery beyond known, exculpatory evidence that is material to the case. Ohio requires in addition to that any evidence the state intends to use in its case in chief. This catagorically does not include witness statements or police reports. The reason for this is simple. A trial is a search for the truth. The defendant is the one person in a criminal case who absolutely knows what the truth is. While he is entitled to rely on his own knowledge for a defense, he is not entitled to made one up based on what other witnesses have said. As it is, the defendant invariably testifies last to gain the benefit of what all the other witnesses say. If the defendant did the crime, he ought to be screwed at trial. Again, this is about finding the truth, not giving guilty defendants a fair chance at acquittal.
And of course there are the accusations from the defense bar. While I can appreciate the frustration with hearing your client's testimony contradicted by his own earlier statements or by other witnesses on cross examination, that really has nothing to do with finding the truth. If discovery reform becomes law, you folks are going to stop saying the State is withholding Brady material to accusing us of not giving you a complete file. There has never been a miscarriage of justice caused by compliance with Crim.R. 16. Those few prosecutors who flaunt it will omit things from the file under a lew law. And they will continue to be reversed and disciplined.
3. I highly doubt that police informants are going to give up a chance at a reduced sentence just to make a principled stand. Let's be clear on what we are talking about. If someone is a factual witness, including witnesses to remarks by the defendant while sharing a jail cell, that person generally is not compensated for his testimony. Why? There is too great of a chance of suborning perjury. OTOH, people facing low drug charges are given reduced sentences for cooperating with police. Sometimes they pay people who are familiar with drug culture but are not facing charges. The reason is simple. Dealers deal to those they know. They wear a wire for evidence and safety purposes. That evidence is more reliable that a by-chance eyewitness, because it is recorded. Drug dealers are dangerous people and are a hazard to the public around them. I frankly have no sympathy for people who make a living by selling horribly dangerous drugs (not really talking about grass here) to, well, stupid people.
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