Political defense

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A political defense is a defense to a criminal charge in which the defendant asserts at trial the political motivations behind the allegedly criminal conduct. In some circumstances, the defendant might assert political motivations in order to seek acquittal. In other circumstances, defendants might not have a realistic hope of acquittal but may nevertheless use the trial as a forum for expressing political views.

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A political defense is distinguished from a legal defense. A legal defense, or a "technical defense", seeks acquittal by demonstrating that the defendant's conduct did not satisfy all of the elements of the alleged crime. In a political defense, the defendant might concede that the conduct took place, but attempt to convince the jury or the public that the conduct was inherently just because of its political motivation. Some defendants might offer both a technical defense and a political defense.

Types of political defenses

The form that a political defense will take depends on its objective, audience, message, legal theory, and tactics.

Objectives

There are several reasons why a defendant might attempt a political defense.

Civil disobedience active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power

Civil disobedience is the active, professed refusal of a citizen to obey certain laws, demands, orders or commands of a government or occupying international power. Civil disobedience is sometimes defined as having to be nonviolent to be called civil disobedience. Civil disobedience is sometimes, therefore, equated with nonviolent resistance.

Audience

Each of these reasons implies a different audience for the political statement. Where the defendant seeks acquittal, the principal audience is the jury. Where the defendant seeks public advocacy, the principal audience is the media that are covering the trial, and through them the public. Where the defendant seeks personal integrity, the audience is himself or herself, or possibly also any collaborators in the conduct being prosecuted.

This difference may influence the choice of legal strategy: if the purpose is public advocacy, then a defendant may attempt to include political statements that would be persuasive to the public even if they would not be persuasive to a jury; the defendant might not be acquitted, but might succeed in communicating the message to the public.

Message

Defendants may have been motivated by several political purposes, and they may choose which message to communicate at trial. This choice is most important where the objective is public advocacy. In other cases, the choice may be more evident: for purposes of personal integrity and confrontation of the state, the defendant probably knows the political views that he or she wishes to communicate; for purposes of acquittal and extracting information from the state, there may be a limited number of arguments that are likely to be successful. However, where the objective is to attract and influence public opinion, the message that is most likely to succeed is not necessarily the same as the political view that principally motivated the defendants.

Rules of evidence require that any statement make in court must be relevant. Defendants must have a legal theory of innocence for which their political message is a necessary element to be proven.

Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove." Probative evidence "seeks the truth". Generally in law, evidence that is not probative is inadmissible and the rules of evidence permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel." A balancing test may come into the picture if the value of the evidence needs to be weighed versus its prejudicial nature.

There are several legal theories that allow defendants might make political statements within a criminal proceeding. They can be divided into three categories: affirmative defenses, inadequacy of mens rea, and shadow defenses.

Affirmative Defenses

An affirmative defense is a defense established by law, according to which the law endorses conduct that is otherwise illegal.

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, and the statute of limitations.

  • Necessity Defense. A necessity defense is a common law doctrine according to which individuals are exonerated from otherwise criminal conduct where that conduct was intended to avoid a greater harm. [1] Some defendants of civil disobedience prosecutions, such as the Winooski 44, have successfully convinced juries that their protests were necessary in order to convince the government to modify allegedly harmful policies.
  • International law defense. Some courts have held that the Nuremberg Principles of international law establish a duty on individuals to prevent others from committing violations of international law. Some defendants protesting violations of international law, such as a 1980 prosecution of people protesting the U.S. military activity in Central America, have been acquitted after successfully convincing judges to allow an international law defense. [2]
  • Defense of others. Some states allow people to take action that is otherwise illegal where it is necessary to protect a third person from harm.
  • Execution of public duty. Similar to the "defense of others" doctrine, some states have laws that require people to take measures to prevent public harms.
Common law Law developed by judges

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

The Winooski 44 were a group of Vermont citizens in the United States who were given permission by the Senator's staff to occupy a hallway outside Senator Robert Stafford's office in March of 1984.

International law regulations governing international relations

International law, also known as public international law or law of nations, is the set of rules, norms, and standards generally regarded and accepted in relations between nations. It establishes normative guidelines and a common conceptual framework for states to follow across a broad range of domains, including war, diplomacy, human rights, commerce, and environmental preservation. International law thus provides a mean for states to practice more stable, consistent, and organized international relations.

Each of these defenses requires that the defendant show that their actions were mitigating or preventing some greater harm or some other illegal conduct. In order to prove this defense, the defendants will be able to submit evidence and witness testimony describing their motivations or communicating other political messages.

Inadequacy of mens rea

Mens rea refers to the mental state that is required in order to be found guilty of the offense. Some statutes require that the person not only knew that they were committing the illegal act, but also that they did so with an unlawful purpose. When charged with this kind of crime, defendants will be permitted to testify in detail about the political views that motivated their action.

Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.

Shadow defense

A shadow defense is a legal defense that will enable the defendant to communicate his or her message, even though the legal defense itself is not likely to succeed. A shadow defense can be any legal theory, including an affirmative defenses. What makes a legal theory a "shadow defense" is that the defendant does not expect to be successful as a matter of law; it is, instead, a pretext for bringing information into the court that would otherwise be irrelevant and therefore inadmissible.

For example, in the trial of the Camden 28, the defendants made an entrapment defense alleging that FBI agents had convinced the group to undertake their allegedly illegal conduct. While making their entrapment defense, the defendants called witnesses to discuss the history of the use of agents provocateurs by the government and also the history of civil disobedience; they also called character witnesses such as a defendant's mother in order to discuss the defendant's peaceful tendency and also his political beliefs.

The shadow defense is related to the idea of jury nullification. Jury nullification occurs when juries decide to acquit defendants even though the defendant has violated the letter of the law. Juries might seek nullification where they agree with the political motivations of the defendant. However, the defendant must first present information about his political motivations to the jury. A shadow defense might be used to convey this information to the jury, not because the defense itself is likely to succeed but because it provides a vehicle for informing jurors about sympathetic personal characteristics of the defendants.

Other causes of jury nullification may include a belief that the law at issue is unjust or unduly harsh, a belief that the prosecution is abusing its power, or a belief that the defendant is not receiving fair treatment on account of his race, color, creed, sexual orientation, or other characteristics.

Tactics

Defendants may use other tactics to communicate their message.

Political trial

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A shadow defense is a legal defense that cannot be sustained on its own merits but opens the door to introducing evidence that will assist in seeking jury nullification, and gives the jury an excuse to acquit. A "shadow defense" also may refer to a tactic by defending counsel that is not expected to be successful as a matter of law; it is, instead, a pretext for bringing information into the court that would otherwise be irrelevant and therefore inadmissible.

A political trial is a criminal trial with political implications. A composite definition of a political trial might be "an examination before a court concerning the conduct of governmental affairs or somehow relating to government." T. Becker writes that "in a sense, all trials are political. Since courts are government agencies and judges are part of the 'system' all judicial decisions can be considered political." A political trial is characterized by the fact that public opinion and public attitudes on one or more social questions will inevitably have an effect on the decision.

A technical defense is one used by a defendant to seek acquittal based on the technicalities of the law. It is in contrast to a political defense which seeks to use political arguments to persuade a jury to nullify. Sometimes the desire to convince a jury on political and moral grounds is so strong that political defendants will reject a potent technical defense.

References

  1. ↑ Steven M. Bauer and Peter J. Eckerstrom (May 1987). "The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience". Stanford Law Review . 39 (5): 1173–1200.
  2. ↑ http://sunsite.berkeley.edu/meiklejohn/meik-peacelaw/meik-peacelaw-16.html#PL-123/25.3
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