Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 2, #5©

June 2000

Issue: At a criminal trial, may the jury decide legal or constitutional issues?

THE usual dichotomy at a criminal trial is that the judge decides issues of law, and the jury is the exclusive finder of fact. In a variety of areas, submitting constitutional or legal issues has been held to be inappropriate for a jury. Handling a Criminal Case in New York, sec. 18:371 (1999-2000 edition).

Consider the "due process"/Isaacson defense. Where the defense contends that the governmental action was not mere entrapment, but outrageous methods to induce the defendant to commit the crime, the issue is for the court to determine. Handling, sec. 15:111. Similarly, a selective prosecution claim is raised pretrial, in a Goodman motion.

Where voluntariness of a statement is in issue, the defendant gets two bites at the apple, being able to argue the issue at a Huntley hearing as well as at trial, CPL 710.70(3). But where voluntariness concerns a question of law, the issue is reserved at trial for the judge. "[T]o decide this issue . . . would require a knowledge of the criminal justice system which not only lay people, but even lawyers who are not active in such practice, do not possess." People v. Medina, 146 AD2d 344, 541 NYS2d 355 (1st Dept 1989), aff'd sub nom, People v. Bing, 76 NY2d 331, 559 NYS2d 474 (1990); People v. Washington, 235 AD2d 561, 653 NYS2d 865 (2d Dept 1997).

The constitutionality of search and seizure issues may not be reargued to the jury. People v. Hamlin, 71 NY2d 750, 530 NYS2d 74 (1988); Handling, sec. 9:115.

There may be a benefit to the defense in some situations. Probable cause being a pretrial issue, the defense should not interject it anew at trial. By the defense not raising the issue, the prosecution may be barred as well from introducing probable cause evidence. See, People v. (Jafers) Thomas, 70 NY2d 823, 523 NYS2d 437 (1987).

: "If I had eight hours to chop down a tree, I'd spend six sharpening my axe."
A. Lincoln

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