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VOLUME 11 - CHAPTER 258
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Chapter 258: Miscellaneous Constitutional Bars To Prosecution

    258.1 First Amendment Defenses: Specification Of Prosecution's Burden
    258.2 Judge-Made Offense
    258.3 Unconstitutional Or Otherwise Invalid Statute

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VOLUME 11 - CHAPTER 258

    258.1    First Amendment Defense: Specification Of Prosecution's Burden

RATIONALE: To resolve a First Amendment defense the jury may need special instruction regarding the factual issues which must be resolved.

POINTS AND AUTHORITIES: See U.S. v. Fleschner (4th Cir. 1996) 98 F3d 155, 158.

    See also FORECITE National™ 300.16 [First Amendment].

    See also FORECITE National™ 99.3.3 [Resisting Arrest: Defense Theory That Verbal Statements Are Not Sufficient].

    See also FORECITE National™ 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

    The First Amendment of the United States Constitution permits all persons to criticize our government and its laws.  Therefore, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not merely criticize the government or its laws but affirmatively urged or encouraged others to violate the law.  If, after considering all the evidence, you have a reasonable doubt that the defendant affirmatively urged others to violate the law you must give the defendant the benefit of that doubt vote to and find [him] [her] not guilty.

[See U.S. v. Fleschner (4th Cir. 1996) 98 F3d 155; see also HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 4.37 [First Amendment Defense] (TRCC 1999).]

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 VOLUME 11 - CHAPTER 258

PRACTICE NOTE: "It is well and wisely settled that there can be no judge-made offenses against the United States and that every federal prosecution must be sustained by statutory authority." (Krulewitch v. U.S. (1949) 336 US 440, 456-57 [69 SCt 716; 93 LEd 790] (Jackson, J., concurring).) The criminal codes of many states also prohibit judicial definition of crimes. (Robinson, Criminal Law Defenses (West, 1984) § 35(a) p. 153.)

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 VOLUME 11 - CHAPTER 258

PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th Ed. 1993) § 83; see also FORECITE National™ 300.13 [Vagueness And Overbreadth].