Has punishment for precedent-setting decisions ever been recognized as retroactive enforcement of a new law? When a court sets a precedent, it is effectively creating a law (case law). This means that the law (or a newly clear interpretation that can only now be relied on) did not exist prior to the courts opinion being handed down. If that is the case, it is trivially obvious that the person found guilty in such a &quot;test case&quot; could not possibly have broken the law, since the law is created at the moment of the decision. Given that it is also clearly improper to hold someone responsible for laws that don't yet exist (violation of the &quot;due process&quot; clause), shouldn't those involved in test cases be protected from punishment? Are there any jurisdictions, or has there ever been a time, where &quot;test case&quot; defendants (and/or litigants in civil actions) are protected from punishment if a precedent is set from the decision? If not for the &quot;due process reasons&quot; but to encourage test cases that can improve the law—vs. the current approach which acts to prevent test cases because they are so risky. Has there ever been an attempt to implement such immunity, and if so, why/how was it defeated? Has a prosecutor and/or judge ever used their discretion to decrease or prevent punishment in a precedent-setting case?
Your premise that &quot;the law did not exist previously&quot; is, from the perspective of how courts work, mistaken. The law always existed, it's just that some people (maybe even judges) mistakenly thought the law didn't exist (actually, &quot;meant something else&quot;). Many people have wrong ideas about what the law says, but ignorance of misunderstanding of the law is no excuse. Even having an understandable wrong belief is no excuse. There is an area in which ignorance of the law is excused. Violation of a person's civil rights under color of law is a civil wrong for which the officer can be sued. See Hope v. Pelzer, 536 U.S. 730 and citations therein: Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate &quot;clearly established statutory or constitutional rights of which a reasonable person would have known.&quot; Thus an officer may not use a qualified immunity defense if the court finds that an action is a civil rights violation and this &quot;clarification&quot; of the law is new.
The Brandenburg Test This is not a &quot;general test&quot; - it's the test that applies. The prosecution must prove beyond reasonable doubt that: The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.” The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded. The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony): Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction. The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action.&quot; Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term &quot;inciting,&quot; suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to &quot;producing&quot; the imminent criminal conduct. Arguably, unless the &quot;producing&quot; language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized.
The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal.
There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order.
Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an &quot;ah-ha&quot; moment and says &quot;Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta.&quot; Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say &quot;this is too hard&quot;. Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says &quot;I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out.&quot; Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with.
It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits.
In general they are not told. In fact, I am not aware of any jurisdiction where they are told by the judge officially. In fact judges will normally charge a jury that they must accept the law as stated by the judge, and ignore any other source of the law, whether they like it or not. But the Judge has no way to enforce such a charge. According to the Wikipedia article The 1895 decision in Sparf v. United States, written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge. A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect. We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that: …by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed. It is not so much that jury nullification is a right of the jury, as that there is very little right for the prosecutor or judge to inquire into why the jury acted however it did. If there is a suspicion that the jury was bribed, or influenced by prohibited communications, that can be looked into. But otherwise a jury is like an oracle, its actions have no specified reason or justification, they are whatever they are. The judge (or an appeals court) can set aside a jury verdict on the grounds that no rational jury could find in a particular way -- this is mostly used to overturn convictions based on insufficient evidence. But a jury has almost total freedom to believe of disbelieve any witnesses, so if it disbelieves, it could acquit, regardless of whether it rejects the law under which charges are brought. So there is no way to tell if a particular verdict was based on nullification, or on disbelief of the witnesses, or some other possible ground. In any case, there is no provision -- that I k now of -- to set aside a jury verdict on the grounds that it was an instance of nullification, so inquiring into whether it was would be of little point. This attitude toward jury verdicts goes back to the very early origins of trial by jury, when it was a replacement for Trial by Ordeal. The Ordeal had been considered a way of asking God to decide the issue, and there was no way to ask God to clarify the decision. When it was replaced by jury trial, no way to ask for clarification was considered possible there either -- the jury was said to voice the decision of the community at large: the formal term for jury trial was &quot;to be tried by the country&quot;. See C. Rembar's The Law of the Land and H.C. Lea's The Duel and the oath for more on this history. This article reports on recent cases where juries have refused to convict in Marijuana cases.
Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself.