Re: jury nullification, jury veto, jury pardon

Larry wrote:

> In article <[EMAIL PROTECTED]>, Ken Smith
> <[EMAIL PROTECTED]> wrote:
> >Larry wrote:
> >
> >> Having had trials myself, I have actually admitted items into evidence,
> >> Ken.  I would explain it to you further, but I don't want you to launch
> >> into any more personal attacks against me simply because you don't
> >> understand the concept of authentication.
> >
> >  I think I understand the concept quite adequately.  A chain of custody
> >wrt any item sufficient to render it improbable that it has been tampered
> >with, contaminated, or exchanged with another item must be established
> >as a precondition to admissibility.
>
> This is not the standard, Ken.  Neither under the Federal rules or NY
> law.  I don't know Colorado though, so I can't say you're wrong.  But
> under any jurisdiction I know, "sufficient to render it improbable that it
> has been tampered, with, contaminated, or exchanged with another item" is
> not even close to the standard of admissibility.

  I'm following Tenth Circuit law.  E.g., U.S. v. Hogg, 1993.C10.40961
(Versuslaw).  I rather doubt the state of affairs is materially different in
the Second, though I am admittedly agnostic as to the state of NY state
law.

> > And if you don't meet that threshold,
> >it doesn't come in. (If you want me to cite case law, I can. :))  You have
> >to lay a proper foundation for the admission of ANY evidence.
>
> Of course oyu need to lay a foundation.  I'm interested to see your
> caselaw that refers to the standard you state above.

  Cardenas, 864 F.2d at 1531, directly quoted in Para. 31 of Hogg.

> >  It has *nothing* to do with "weight"; it's ALL about admissibility.
>
> The OJ case is a perfect example of why you're wrong.  All the blood
> evidence came in, but both sides were free to argue that either (i) it
> clearly proves his guilt, or (ii) it was so poorly kept and contaminated
> that it proves nothing.  Ken, "weight" is ALWAYS at issue in any case at
> all.

  See below.  When you let "evidence" in without a proper foundation,
it engenders a Rule 403 problem: It may or may not be what the propo-
nent says it is, and that creates an undue risk of prejudice.  Because the
rule exists, the police generally do take care to meet minimum standards
with respect to the admissibility of evidence.
  Once you meet that threshold test, the evidence does come in, and any
challenges go to the weight, as opposed to admissibility.  That is the rule
of law in the Tenth Circuit, the Second Circuit, and pretty much any other
jurisdiction you are likely to find.  (If the NYPD does its' job, you won't
have to worry overmuch about the threshold test, though.)

> Each side always wants the jurors to give more or less weight to
> various aspects of the evidence.
>
> >  However, if the chain of custody is simply poor (as it probably is on a
> >fairly regular basis in New York City), opposing counsel has the duty to
> >exploit that deficiency in an attempt to create reasonable doubt.  Seems
> >fairly obvious to me.
> >
> >  There, it's ALL about weight.
>
> I thought if the chain of custody was poor it isn't admissible?  You've
> talked yourself into a contradiction.

  There is a difference between simply poor and totally FUBAR, and the
law of our circuit properly recognizes the distinction.

> BTW, chain of custody within the NYPD is fairly clear.  There is a very
> comprehensive evidence vouchering and storage system in place, especially
> for narcotics, marijuana, and contraband.

  IOW, this is an issue you've never actually run into.

> >  Tell me again, Counsel: What part of Rule 901 do I not understand?

  So tell me again, Counsel: What part of Rule 901 do I not understand?