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  • Legalbear
    Why wouldn’t this apply to statutory presumption that you are a taxpayer with income? I think it would. Why wouldn’t it apply to both civil and criminal
    Message 1 of 2 , Sep 14, 2010
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      Why wouldn’t this apply to statutory presumption that you are a taxpayer with income? I think it would. Why wouldn’t it apply to both civil and criminal tax issues? I think it would. It’s a due process issue:

       

      The fundamental right of the defendant to be presumed innocent is swept away to precisely the extent judges and juries rely upon the statutory presumptions of guilt found in 21 U. S. C. § 174 and 26 U. S. C. § 4704 (a). And each of the weapons given by the Bill of Rights to the criminal accused to defend his innocence -- the right to counsel, the right to confront the witnesses against him and to subpoena witnesses in his favor, the privilege against self-incrimination -- is nullified to the extent that the Government to secure a conviction does not have to introduce any evidence to support essential allegations of the indictment it has brought. It would be a senseless and stupid thing for the Constitution to take all these precautions to protect the accused from governmental abuses if the Government could by some sleight-of-hand trick with presumptions make nullities of those precautions. Such a result would completely frustrate the purpose of the Founders to establish a system of criminal justice in which the accused -- even the poorest and most humble -- would be able to protect himself from wrongful charges by a big and powerful government. It is little less than fantastic even to imagine that those who wrote our Constitution and the Bill of Rights intended to have a government that could create crimes of several separate and independent parts and then relieve the government of proving a portion of them. Of course, within certain broad limits it is not necessary for Congress to define a crime to include any particular set of elements. But if it does, constitutional due process requires the Government to prove each element beyond a reasonable doubt before it can convict the accused of the crime it deliberately and clearly defined. Turner's trial therefore reminds me more of Daniel being cast into the lion's den than it does of a constitutional proceeding. The Bible tells us Daniel was saved by a miracle, but when this Court says its final word in this case today, we cannot expect a miracle to save petitioner Turner. TURNER v. UNITED STATES, 1970.SCT.40346 <http://www.versuslaw.com>¶ 76; 396 U.S. 398 (1970 MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.

       

      [78]        The instructions directing the jury to presume guilt in this case were not, of course, the trial judge's own inspiration. Congress, in enacting the statutory presumptions  purporting to define and limit the quantum of evidence necessary to convict, has injected its own views and controls into the guilt-determining, fact-finding process vested by our Constitution exclusively in the Judicial Branch of our Government. The Fifth Amendment's command that cases be tried according to due process of law includes the accused's right to have his case tried by a judge and a jury in a court of law without legislative constraint or interference. These statutory presumptions clearly violate the command of that Amendment. Congress can declare a crime, but it must leave the trial of that crime to the courts. See Leary v. United States, 395 U.S. 6, 55 (1969) (concurring in result); and United States v. Gainey, 380 U.S. 63, 84-85 (1965) (dissenting opinion).

       

      [79]        It is my belief that these statutory presumptions are totally unconstitutional for yet another reason, and it is a critically important one. As discussed earlier, the Constitution requires that the defendant in a criminal case be presumed innocent and it places the burden of proving guilt squarely on the Government. Statutory presumptions such as those involved in this case rob the defendant of at least part of his presumed innocence and cast upon him the burden of proving that he is not guilty. The presumption in 21 U. S. C. § 174 makes this shift in the burden of proof explicit. It provides that possession of narcotic drugs shall be deemed sufficient evidence to justify a conviction "unless the defendant explains the possession to the satisfaction of the jury." However, so far as robbing the defendant of his presumption of innocence is concerned, it makes no difference whether the statute explicitly says the defendant can rebut the presumption of guilt (as does the provision of 21 U. S. C. § 174 just quoted), or whether the statute simply uses the language of "prima facie case" and leaves implicit the possibility of the defendant's rebutting the presumption (as does 26 U. S. C. § 4704 (a)). Presumptions of both forms tend to coerce and compel the defendant into taking the witness stand in his own behalf, in clear violation of the accused's Fifth Amendment privilege against self-incrimination. This privilege has been consistently interpreted to establish

      the defendant's absolute right not to testify at his own trial unless he freely chooses to do so. As we observed in Malloy v. Hogan, 378 U.S. 1, 8 (1964), the privilege is fulfilled only when the person is guaranteed "the right . . . to remain silent unless he chooses to speak in the unfettered exercise of his own will . . . ." The defendant's right to a free and unfettered choice in whether or not to testify is effectively destroyed by the coercive effect of the statutory presumptions found in 21 U. S. C. § 174 and 26 U. S. C. § 4704 (a). See United States v. Gainey, 380 U.S. 63, 71-74, 87 (1965) (dissenting opinions). Moreover, when the defendant declines to testify and the trial judge states to the jury as he did in this case that evidence of possession of narcotics shall be deemed sufficient to convict "unless the defendant explains the possession to the satisfaction of the jury," such an instruction is nothing less than judicial comment upon the defendant's failure to testify, a practice that we held violative of the Self-Incrimination Clause in Griffin v. California, 380 U.S. 609 (1965).

       

      [80]        How does the Court respond to the grave constitutional problems raised by these presumptions of guilt? It says only that these presumptions are, in its view, "reasonable" or factually supportable "beyond a reasonable doubt." In other words, the Court has concluded that the presumptions are "fair" and apparently thinks that is a sufficient answer. It matters not to today's majority that the evidence that it cites to show the factual basis of the presumptions was never introduced at petitioner's trial, and that petitioner was never given an opportunity to confront before the jury the many expert witnesses now arrayed against him in the footnotes of the Court's opinion. Nor does it apparently matter to the Court that the fact-finding role it undertakes today is constitutionally vested not in this Court but in the jury. If Congress wants to make simple possession of narcotics an offense, I believe it has power to do so. But this Court has no such constitutional power. Nor has Congress the power to relieve the prosecution of the burden of proving all the facts that it as a legislative body deems crucial to the offenses it creates. TURNER v. UNITED STATES, 1970.SCT.40346 <http://www.versuslaw.com>¶ 76; 396 U.S. 398 (1970 MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.

       

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    • Frog Farmer
      ... An accused had best be prepared to demand rights sua sponte before they get violated! An accused will not be afforded coaching by his enemies, those who
      Message 2 of 2 , Sep 15, 2010
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        Legalbear axed:

        > Why wouldn't this apply to statutory presumption that you are a
        > taxpayer with income? I think it would. Why wouldn't it apply to both
        > civil and criminal tax issues? I think it would. It's a due process
        > issue:
        ...
        > And each of the weapons given by the Bill of Rights
        > to the criminal accused to defend his innocence -- the right to
        > counsel, the right to confront the witnesses against him and to
        > subpoena witnesses in his favor, the privilege against self-
        > incrimination -- is nullified to the extent that the Government to
        > secure a conviction does not have to introduce any evidence to support
        > essential allegations of the indictment it has brought.

        An accused had best be prepared to demand rights "sua sponte" before
        they get violated! An accused will not be afforded coaching by his
        enemies, those who seek to further use him as a revenue source in the
        mathematically impossible and inarticulable Ponzi scheme that passes for
        a monetary system. It is good that a recent case (Kahre) made clear
        that we have a choice between two competing systems. It is too bad that
        choice of one system was treated as a crime, but the real crime was in
        the speaking done by those involved, who put their entire feet into
        their own mouths because they could not articulate either system! And
        so their claim of knowledgeable choice was shown to be perjury which is
        what a lie or mistake under penalty of perjury and signed or sworn to
        IS. People contradict themselves WAY TOO MUCH!!

        > [80] How does the Court respond to the grave constitutional
        > problems raised by these presumptions of guilt? It says only that
        > these presumptions are, in its view, "reasonable" or factually
        > supportable "beyond a reasonable doubt." In other words, the Court has
        > concluded that the presumptions are "fair" and apparently thinks that
        > is a sufficient answer. It matters not to today's majority that the
        > evidence that it cites to show the factual basis of the presumptions
        > was never introduced at petitioner's trial, and that petitioner was
        > never given an opportunity to confront before the jury the many expert
        > witnesses now arrayed against him in the footnotes of the Court's
        > opinion. Nor does it apparently matter to the Court that the fact-
        > finding role it undertakes today is constitutionally vested not in
        > this Court but in the jury. If Congress wants to make simple
        > possession of narcotics an offense, I believe it has power to do so.
        > But this Court has no such constitutional power. Nor has Congress the
        > power to relieve the prosecution of the burden of proving all the
        > facts that it as a legislative body deems crucial to the offenses it
        > creates. TURNER v. UNITED STATES, 1970.SCT.40346

        Yup...so, somebody is going to have to be a little smarter to not let
        presumptions go unrebutted. One can remain silent and let other
        witnesses speak for him. This all comes way down the list of things to
        do, because today, to get into this situation of being prosecuted for
        something, anything, one usually has to cooperate in their own
        prosecution to some extent. Admissions and confessions cause over 90%
        of convictions!

        Waivers made upon polite or impolite request add to the count.

        Mistakes and spelling errors add more. Nobody has the authority to
        correct your words except you.

        Regards,

        FF
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