Is NY State Constitution Article VI Section 18 (a) Unconstitutional? NY State Constitution Article VI Section 18 (a) reads: [Trial by jury; trial without jury; claims against state] §18. a. Trial by jury is guaranteed as provided in article one of this constitution. The legislature may provide that in any court of original jurisdiction a jury shall be composed of six or of twelve persons and may authorize any court which shall have jurisdiction over crimes and other violations of law, other than crimes prosecuted by indictment, to try such matters without a jury[...]. How in heavens is it possible for the legislature to authorize courts to try such matters without jury when the right to trial by jury is guaranteed in the VI Amendment of US Constitution?
The right to trial by jury in criminal cases by a unanimous jury of twelve under the 6th Amendment to the United States Constitution and some related rights are only partially incorporated to apply against states via the 14th Amendment due process clause. (The right to a jury trial in a civil case under the 7th Amendment to the United States Constitution does not apply to the states.) As noted, the federal right to a jury trial in a criminal case applies only when more than six months of imprisonment are a possible sentence pursuant to Baldwin v. New York. (Proceeding to trial without a jury on a more serious charge is allowed so long as the actual sentence does not exceed six months.) In practice, many states establish a right to a jury trial in many criminal cases where the U.S. Constitution does not require them. Juries are not required in juvenile delinquency proceedings. The 6th Amendment right to a criminal jury trial does not apply to military justice either, although there are constitutional limitations that do apply to military justice. There are no jury trials in the territorial courts of American Samoa which is beyond the scope of 6th Amendment protection. A unanimous jury of six or more jurors is allowed (at least in non-death penalty cases). A state jury does not have to be unanimous (at least in non-death penalty cases). Ten of twelve is constitutionally sufficient for a twelve person jury; nine of twelve is not sufficient constitutionally. In practice, only one or two states permit non-unanimous jury verdicts. [Since this post was originally written, the precent implicitly referenced here was overturned and all criminal case juries must be unanimous. New York State, however, never allowed non-unanimous jury trials anyway.] There is not a federal constitutional right to waive a jury trial, although this exists in some states by state constitution or other forms of state law. The right to have felony charges screened by a grand jury also does not apply to the states. About half of U.S. states require grand juries to screen felony charges, mostly in the eastern U.S. I have the precedents in a criminal procedure text book and will update is I get a chance. See also the footnotes here. To some extent, the constitutional provision in NY State is designed to make clear that bench trials are allowed when a jury has been waived. It also authorizes bench trials where the U.S. Constitution and state law permits them.
How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is &quot;because the Supreme Court of the United States said so.&quot; In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action&quot;. The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his &quot;caveat&quot;) that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg). The Declaration of Independence is not law. Following &quot;a history of repeated injuries and usurpations&quot; and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not &quot;enshrine&quot; or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.
Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction.
Article 10 of Part I of the Constitution of New Hampshire (Article 10, Part II relates to classification of town governments) is mentioned in five reported appellate cases in the history of New Hampshire since it was adopted in 1784 that I could locate. It has never successfully been effective to protect the rights of anyone invoking it. (It is possible that it has been argued in a trial court on a jury nullification theory, but such cases wouldn't produce reported cases as criminal acquittals cannot be appealed by the government.) The cases, and the pertinent part of each ruling, are as follows: Orr v. Quimby, 54 N.H. 590, 619 (1874), it was held to create a moral rather than a legal right: The legal idea of a bill of rights is a declaration of private rights, annexed to and made a part of a constitutional grant of governmental power. Reservation is, in general, the purpose and legal meaning of such declaration. For exceptional reasons, applicable to the construction of article 10, the right of insurrection there declared is evidently a moral right, not reserved as a legal one. But many of the most important constitutional rights are reserved in terms much less imperative than "shall" and "shall not." The right of petitioning for a redress of grievances (the plaintiff's sole remedy, if the plea is good) is reserved by a simple declaration of the right, without a word literally signifying a command or prohibition. It was also addressed in the case Opinion of the Justices, 144 N.H. 374, 746 A.2d 981 (1999) where it was found to not invalidate a means of raising revenue for a municipal electrical utility: Question two inquires whether HB 536 "violate[s] the constitutional provision that government is instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men under part I, article 10 of the New Hampshire constitution?" We answer this question in the negative. Part I, Article 10 provides: Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly [746 A.2d 987] endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. This provision of our constitution has commonly been regarded as enumerating a citizen's right to reform an ineffectual or manifestly corrupt form of government. See City of Claremont v. Craigue, 135 N.H. 528, 533-34, 608 A.2d 866, 869 (1992); Nelson v. Wyman, 99 N.H. 33, 50, 105 A.2d 756, 770 (1954). We have recognized for over one hundred years, however, that this provision is imbued with "[t]he principle of equality [that] pervades the entire constitution," State v. Pennoyer, 65 N.H. 113, 114, 18 A. 878, 879 (1889), and as such, Article 10 provides support for the maxim that "[t]he law cannot discriminate in favor of one citizen to the detriment of another." Id. Thus, Part I, Article 10 has been recognized as providing for more than a "right of revolution"; rather, it is one of many provisions in our Bill of Rights that forms the basis for a citizen's right to equal protection. See, e.g., Town of Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 602 (1985) (zoning ordinance violated equal protection rights guaranteed by Part I, Articles 1, 2, 10, 12, and 14); Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147, 151 (1980) (statute violated equal protection rights guaranteed by Part I, Articles 1, 10, 12, and 14). Pursuant to the principle of equality inherent in Article 10, this court found that the raising of tax revenue to aid an electric utility would violate Part I, Article 10's mandate that government is "instituted for the common benefit ... of the whole community, and not for the private interest or emolument of any one man, family, or class of men." Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425, 429 (1937). Aid to a utility is forbidden except in protection of the public welfare and interest. And the protection must be in a needed service furnished the public by the utility as a condition of the aid. Without the condition the protective principle is inapplicable. Unconditional aid is not a proper charge of government to be met by the taxpayers. 144 N.H. 382 Id. at 488-89, 190 A. at 428. The court noted that the existing public utilities already provided sufficient power to service State customers, and that any additional supply was sent out-of-state. Id. at 489, 190 A. at 429. The court reasoned that because the transmission of additional electric energy outside the State served no public purpose, and thus the need for public funds for additional development was a private, not public, purpose, the proposed aid was unconstitutional. Id. In this case, however, the legislature is proposing to create a tax exemption, rather than directly raising tax revenue to subsidize private purposes. Cf. Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 101, 697 A.2d at 124 (finding determinative under Part II, Article 5 that there was not direct expenditure, but rather a uniform exemption of state-wide application). Moreover, even if one views an exemption as simply a form of direct grant, see Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 9, 146 A. 511, 515 (1929) (exemptions are "in effect, a compulsory payment of money, by those who bear their shares of the common burden, to the privileged person who does not bear his share"), the public benefit gained by this legislation is sufficient to render it constitutional. Our constitution does not require absolute equality of burden in the case of exemptions. "The resulting inequality or discrimination against unexempted property is not fatal to the constitutionality of the exemption," Opinion of the Justices, 87 N.H. 490, 491, 178 A. 125, 126 (1935), provided "it advances a public purpose," Opinion of the Justices, 95 N.H. at 550, 65 A.2d at 701, and is "properly within the legislature's discretion in acting for the welfare of the state," Opinion of [746 A.2d 988] the Justices, 87 N.H. at 491, 178 A. at 126. As stated above, the benefit to be gained by HB 536 is increased competition and customer choice, and not necessarily the need for additional power. Further, deregulation of the electric utility industry is "properly within the legislature's discretion in acting for the welfare of the state," id., and it is proper for the legislature to enact exemptions that promote the economic well-being of the State, see Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 100, 697 A.2d at 123. Accordingly, the tax exemption is properly granted under the legislature's "constitutional power to provide for the common benefit, protection and security," Opinion of the Justices, 88 N.H. at 487, 190 A.2d at 428, and does not violate Part I, Article 10. To the extent that question two implicates additional equal protection guarantees under Part I, Article 10, cf. Gazzola, 120 N.H. at 29, 411 A.2d at 151, we conduct our analysis concurrently with the next question you posed; namely, whether HB 536 improperly classifies taxable property such that the burden of taxation is inequitably distributed, cf. Rosenblum v. Griffin, 89 N.H. 314, 320-21, 197 A. 701, 706 (1938) (constitutional issue of classification decided under Part I, Article 10). For the reasons stated below, this part of question two is answered in the negative. In another case, City of Claremont v. Craigue, 135 N.H. 528, 608 A.2d 866 (1992), it was argued unsuccessfully, that voter approval cleansed an improperly adopted budget of the taint of improper steps taken prior to the vote: Finally, the respondents cite part I, article 10 of the New Hampshire Constitution, known as the right of revolution, as a general right to self-determination. Part I, article 10 provides in pertinent part that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, [135 N.H. 534] or establish a new government." Without in any way detracting from the continuing validity and truth of part I, article 10, we find that none of [608 A.2d 870] the conditions specified in that article have been met in this case. Prohibiting voter ratification of a city's budget hardly "perverts" the ends of government or manifestly endangers public liberty, so long as the city's voters retain the right to elect their local representatives. Moreover, the defendants have not exhausted all other legal means of redress, since, as we noted above, the legislature has set forth a statutory procedure for charter revision, and that option remains available to the voters of Claremont. Therefore, the respondents' proposed revisions to the Claremont city charter are invalid, and of no effect. It was brought up, without success, in In re Town of Bethlehem, 154 N.H. 314, 911 A.2d 1 (2006), but I don't have access to that particular opinion in which an environmental regulation was challenged. It was raised in Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756 (1954) where the court concluded that it did not invalidate a McCarthy era law: It is also strongly urged by the plaintiff that the Legislature of this state cannot proscribe activities looking to the overthrow of government by force or violence because of Article 10 of the Bill of Rights which provides, in part, that ‘whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind’. With this interpretation we cannot agree. The right reserved to the people by this Article is not such a broad and unlimited right of insurrection and rebellion as to permit any group which is dissatisfied with existing government to lawfully attempt at any time to overthrow the government by force or violence. It is not claimed by the plaintiff that ‘the ends of government’ are now ‘perverted’, ‘public liberty manifestly endangered, and all other means of redress * * * ineffectual’ but it is only when those conditions prevail that the right to resist and to ‘reform the old, or establish a new government’ exists. The right possessed by the people of this state as a protection against arbitrary power and oppression cannot be utilized to justify the violent overthrow of government when the adoption of peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government. 99 N.H. 51 Dennis v. United States, 341 U.S. 494, 501, 549, 71 S.Ct. 857, 95 L.Ed. 1137. To require a government representative of the people, in the face of preparations for revolution by force, to refrain from acting to curb the [105 A.2d 771] outbreak of violence and to confine itself solely to holding answerable those persons who have committed crimes of violence and terrorized the community in the name of revolution must result in anarchy. Dennis v. United States, supra, 341 U.S. 501, 71 S.Ct. 857. Article 10 was not intended to accomplish this result. So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional upon its face, so as to furnish a basis for the resolution of 1953.
Constitutional matters can be, and often are, decided by a single judge in a garden-variety trial court. It's just that the judge's decisions may be reviewed and possibly overturned by a higher court, one of which is the supreme court. Furthermore, district courts are bound by precedent. If a case turns on a new statute, however, the trial judge can indeed find that new statute unconstitutional without a higher court first having done so. If a panel of judges is evenly divided on whether to overturn a lower court's ruling, the lower court's ruling stands, but no precedent is set. The supreme court often has an even number of justices hearing a case, whether because of a vacancy or because a justice has recused him or herself.
SCOTUS has at least three times found that it is necessary for a defendant to be present at the beginning of a criminal trial in order to satisfy the Constitutional mandates regarding due process. So the simple answer is that a defendant must be present during a criminal trial because without his presence no trial can begin. However, once a trial has begun FRCP Rule 43 itself (section c) allows for the absence of the defendant. Among the provisions: The defendant can waive his right to be present simply by voluntary absence. The defendant can also waive his right by disruptive behavior in the court.
A US state's constitution cannot "put restrictions on" the Federal constitution, or any of the rights guaranteed by it, if by that is meant limiting the rights Federally guaranteed. The so called "Supremacy clause" of Article VI says: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (The above was more relevant before the question was edited to remove the 'put restrictions on" language. But it is still accurate and somewhat relevant.) Similarly, and because of the Supremacy clause, the content of a US State's constitution cannot change the interpretation of the federal constitution, in either state or federal courts, including the presence or absence of rights similar to those protected by the Federal Constitution. However, a number of state constitutions have guarantees which parallel the federal First Amendment, particularly its freedom of speech and freedom of religion aspects. This is particularly true of state constitutions written prior to the ratification of the Fourteenth Amendment. At that time, the Federal Bill of Rights only restricted the federal government, and so when similar restrictions were wanted against a state government, they had to be in the state constitutions. See Barron vs Baltimore for the limitation of the bill of rights to restricting the federal government at this time. Such provisions did not usually reference the Federal First Amendment explicitly, they simply had more or less similar language. Since the passage of the 14th, and the incorporation of the various provisions of the Federal bill of rights against the states (largely starting in the 1920s) most court cases have refereed to the Federal provision rather than any similar state provision, unless, as is sometimes the case, the state provision offers greater rights or wider scope than the federal one does.
There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed &quot;fundamental&quot; are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is &quot;rationally related&quot; to a &quot;legitimate&quot; government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, &amp; Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of &quot;substantive Due Process&quot;, mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright.&quot; In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones.