Vote NO Amendment 6!

Commentary: 

Presumed innocent? No guarantee in Florida if Amendment 6 is approved

David Redfearn 

With Amendment 6, Florida’s Constitution Revision Commission proposes to strip away the presumption of innocence in criminal prosecutions and diminish the right to trial by jury. Floridians should reject the CRC’s invitation to dismantle our trial rights by voting no.

A bedrock principle of American justice is that an accused person is innocent until proved guilty after a fair jury trial. Nothing is more American than our right to a jury trial. Americans served on juries before they invented jazz, innovated baseball, or even broke bread at the First Thanksgiving. The early colonists brought to America the jury trial as their birthright and inheritance, a part of the English common law which fenced in and erected barriers on all sides against the approaches of arbitrary power. So important was the right to jury trial, the Framers of the Constitution enshrined it in both Article III and the Bill of Rights. The states guaranteed those same rights in their own constitutions.

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For thirty years Florida has included in its Constitution the rights of victims and their families to be heard, informed, and present during a criminal case while also, crucially, ensuring that victims’ constitutional rights do not interfere with those of the accused.

Now the CRC proposes amending Article 1, Section 16(b) to eliminate the current language that safeguards against interference with the constitutional rights of the accused. Striking this language from the Constitution will diminish our jury trial rights. And by declaring an accuser is a victim before a trial takes place, while also mandating that an accused can never be a victim, Amendment 6 aims to supplant the jury’s role in deciding a person’s guilt.

While our Constitution already guarantees the rights of crime victims, Amendment 6’s proponents complain that the accused still have more rights than victims. But their goal of placing the accuser on “equal footing” with the accused in a criminal trial is contrary to the history, purpose, and design of our Constitution.

Why does the Constitution guarantee several individual rights for the accused? Amendment 6’s sponsor, Commissioner Tim Cerio, speculated: “Maybe it is because back in the late 18th century, the accused really were the victims and the bad guy was the government, but times have changed, times have evolved...” The implication: government is less dangerous now, so it’s OKto weaken our rights.

The Framers would have disagreed. They intentionally created an imbalance of rights favoring the accused to give meaning to the presumption of innocence. So attempting to equalize the rights of accusers and accused thwarts the Constitution’s purposefully unbalanced design. As Justice Scalia argued in Maryland v. Craig, “interest-balancing” favoring accusers has no place in the Constitution or criminal trials.

Our forefathers knew that a government unchecked by the jury trial and the presumption of innocence is always capable of abusing its power. In Parliament’s Stamp Act of 1765, it was the elimination of juries in Admiralty Courts, not taxation, that John Adams considered the most grievous threat to liberty. More recently the Supreme Court itself noted the primary purpose of trial by jury is to prevent “oppression by the government.”

But the jury trial doesn’t merely protect an individual from government oppression. The jury trial also belongs to the public, serving an important structural role in our free society. This dual function of the jury trial appears lost on Amendment 6’s supporters in the CRC.

In Federalist No. 83, Alexander Hamilton described two separate rationalizations for requiring trial by jury. One was a safeguard to individual liberty; the other was that it was “the very palladium of free government.” In other words, the right to jury trial served both a structural/republican function, creating a democratic branch of the judiciary; and an instrumental function, protecting defendants against arbitrary prosecution and unjust punishment.[

By guaranteeing the jury trial in Article III of the original constitution, and further defining trial rights in the Sixth Amendment, the Framers satisfied both rationales Hamilton described, thereby ensuring the dual function the criminal jury trial as both a locus of democracy and a bulwark against government oppression.

As delegates to the Constitutional Convention left Independence Hall on the final day of deliberation, a bystander asked of Benjamin Franklin, “Well, Doctor, what have we got a republic or a monarchy?” Franklin replied, “A republic, if you can keep it.”

It is now up to us who care about fundamental principles of liberty to keep our Constitution and trial rights undiminished by voting no on 6.

David Redfearn is a Florida Bar Board Certified Criminal Trial Lawyer and assistant public defender in Orlando.

David Redfearn is a Florida Bar Board Certified Criminal Trial Lawyer and assistant public defender in Orlando. 

1 Comment

FLSC Justices mandatory retirement pushed back

November 9, 2018 09:10 AM by Jose A. Barreiro

So now that amendment 6 has passed, are the Florida Supreme Court Justices set to retire able to stay?  The proposed amendment simply changes 70 to 75 and deletes language about serving out a last term if half of it was already served.  If so, DeSantis won't be able to appoint any justices just yet.  Thoughts?

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