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  1. #41

    Default Re: Legal Issues for a Child Who Was Kidnapped at Birth (For a Novel)

    Quote Quoting PayrolGuy
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    Only if they could get the parents to go along with it.
    Indeed, which is the case in my story. In fact these parents are a bit fanatical about wanting their daughter to marry the man in question, which is why she goes along with it even though she doesn't want to.
    I'm finding some interesting info on jury nullification, so thanls for bringing it up! I'll need to research more before I can know if it's the route I want to go, but it looks potentially promising. It seems highly unusual, but in a work of fiction, unusual only makes it more interesting. The general base of readers I've gained so far would probably like it, as it would give them a sense that true justice was done - something we don't always get in real life.

  2. #42
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting SilenceintheLibrary
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    Hmm...this might be a long shot, but is there any way she could potentially get off the hook, or bargain her way to a lesser conviction, by making a convincing case that she believed she was removing the child from harm?
    Unless she could persuade the federal and state prosecutors to decline to prosecute (which would be a long shot even with the support of the birth family and probably impossible without it) I do not see the argument that she believed that she was removing the child from harm as a viable argument. She still had to know that she was engaging in the crime of kidnapping. If she truly felt the child would be subject to abuse, she had the choice to report that to the child protective services agency. The real fact of the matter is that most women who kidnap babies are doing so not because they think they are rescuing the baby from harm (indeed they typically know nothing of the birth family) but because they themselves feel some desperate need for a child of their own and resort to crime to get it. Juries and prosecutors are not sympathetic to that, nor should they be. And, at least, you’d have to be a really, really terrific writer to spin a tale good enough to make me feel sympathetic enough to the kidnapper to say that she ought to avoid ALL punishment for what she had done.

  3. #43

    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    My ideal preference would be for her to be convicted, but given a relatively light sentence. She definitely committed a crime, and while she was motivated in part by altruistic motives, there's no question that her own desire for a child was also coming into play. I think a conviction makes sense, but the mandatory minimum of 20 years is only going to cause more pain, so I'd love to bring that down if I could. I just don't know if there's a way.

  4. #44
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting jk
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    A jury can do it for whatever reason they choose.
    No, it can’t. The jury is specifically instructed it must find the defendant guilty if it finds the state proved the defendant guilty beyond a reasonable doubt. However, unless a special verdict is required the jury does not have to explain any of its reasoning in reaching its decision. Thus jury nullification; the jury can acquit for reasons other than they feel that the state failed to prove that the defendant was not guilty beyond a reasonable doubt. The most common reason for nullification is that the jury believes the law itself is unjust. The problem is that in pretty much every state and in the federal system it is improper for a defendant or defense attorney to argue nullification to a jury. That can cause a mistrial and sanctions against the defendant or defense attorney for doing it. If a jury is going to nullify, it has to reach that decision independently from the urging of the defense. The problem with that in this story is that the jury will never hear the argument for it and likely will not even hear much of the evidence the defense would want to use to paint the sympathetic picture of the defendant to the jury. I truly think nullification is realistically unlikely here. Getting 12 people to agree to acquit a kidnapping charge based on nullification would be a long shot even if the defense was allowed to argue it; without that argument what is going to motivate all 12 to acquit if the state is able to prove the kidnapping?

  5. #45

    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Why wouldn't the jury hear the evidence from the defense?

  6. #46
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting SilenceintheLibrary
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    My ideal preference would be for her to be convicted, but given a relatively light sentence. She definitely committed a crime, and while she was motivated in part by altruistic motives, there's no question that her own desire for a child was also coming into play. I think a conviction makes sense, but the mandatory minimum of 20 years is only going to cause more pain, so I'd love to bring that down if I could. I just don't know if there's a way.
    Then go the route that she's prosecuted and convicted solely by the Virginia courts and not the feds. In the Virginia courts the sentence (at least in current law, one would have to review the law at the time of the kidnapping too) most kidnapping appears to be a class 5 felony with sentences of 1-10 years. So in Virginia she could perhaps hope to convince a judge to sentence her to just a couple of years of prison followed by a period of parole.

    Quote Quoting SilenceintheLibrary
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    Why wouldn't the jury hear the evidence from the defense?
    The only evidence that may be presented at the trial are those things that will help prove whether it is more or less likely that she committed the crime. Evidence as to other things, like the circumstances of the birth family, are not relevant to that inquiry and should be excluded by the judge.

  7. #47

    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting Taxing Matters
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    Then go the route that she's prosecuted and convicted solely by the Virginia courts and not the feds. In the Virginia courts the sentence (at least in current law, one would have to review the law at the time of the kidnapping too) most kidnapping appears to be a class 5 felony with sentences of 1-10 years. So in Virginia she could perhaps hope to convince a judge to sentence her to just a couple of years of prison followed by a period of parole.
    That's what I originally wanted to do, but upon reading more, it definitely qualifies as a federal crime, since she did cross state lines with the child. Is it plausible that the federal government would not bring any charges in this case even though it could?

  8. #48
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    wow - what if she was next in line to the throne of another country??/

    Or maybe an heir to a large fortune????

  9. #49
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting Taxing Matters
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    No, it can’t. The jury is specifically instructed it must find the defendant guilty if it finds the state proved the defendant guilty beyond a reasonable doubt. However, unless a special verdict is required the jury does not have to explain any of its reasoning in reaching its decision. Thus jury nullification; the jury can acquit for reasons other than they feel that the state failed to prove that the defendant was not guilty beyond a reasonable doubt. The most common reason for nullification is that the jury believes the law itself is unjust. The problem is that in pretty much every state and in the federal system it is improper for a defendant or defense attorney to argue nullification to a jury. That can cause a mistrial and sanctions against the defendant or defense attorney for doing it. If a jury is going to nullify, it has to reach that decision independently from the urging of the defense. The problem with that in this story is that the jury will never hear the argument for it and likely will not even hear much of the evidence the defense would want to use to paint the sympathetic picture of the defendant to the jury. I truly think nullification is realistically unlikely here. Getting 12 people to agree to acquit a kidnapping charge based on nullification would be a long shot even if the defense was allowed to argue it; without that argument what is going to motivate all 12 to acquit if the state is able to prove the kidnapping?
    Yes they can Tm. It is up to the jury. While the jury is ethically expected to return a verdict on the merits, they can and have nullified a prosecution for whatever reason they choose.


    now speaking to attorneys; that is whom cannot argue or suggest a nullification.

    https://www.law.cornell.edu/wex/jury_nullification


    https://law.justia.com/cases/federal...16/606/611938/


    obviously it cannot be sanctioned by the court or any officers of the court as it in itself defeats the system of trials we have in place.


    That doesn’t stop a jury from doing it.

  10. #50
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    Default Re: My Novel Woman Was Kidnapped at Birth - How to Sort Through Legal Issues

    Quote Quoting SilenceintheLibrary
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    That's what I originally wanted to do, but upon reading more, it definitely qualifies as a federal crime, since she did cross state lines with the child. Is it plausible that the federal government would not bring any charges in this case even though it could?
    It is certainly possible that the federal government would forego prosecution when the state has already prosecuted the defendant for the same act. Indeed, that is fairly common. The Justice Department has a stated policy on when it will pursue prosecution when the state has already secured a conviction. The core of that policy is the following:

    This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

    Satisfaction of the three substantive prerequisites does not mean that a proposed prosecution must be approved or brought. The traditional elements of federal prosecutorial discretion continue to apply. See Principles of Federal Prosecution, USAM 9-27.110.

    In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.

    USAM 9-2.031.

    So, the basic process would be that the federal and state prosecutors would usually confer to decide in which forum the case should be brought — federal court or state court. In most cases, the case will only be brought in one of them and not both. For the feds to proceed after the state has already secured a conviction, the prosecutor needs to satisfy the three elements outlined in the policy above and secure the approval of an assistant attorney general (which is a high ranking official of the Justice Department).

    Bottom line is that it is indeed possible that the case would proceed only in the Virginia courts and as this is your story you could certainly have it play out that way.


    Quote Quoting jk
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    Yes they can Tm. It is up to the jury. While the jury is ethically expected to return a verdict on the merits, they can and have nullified a prosecution for whatever reason they choose.
    The jury is not supposed to do it. The jury is specifically instructed on the basis it is supposed to decide the case. And, at least in the federal system, should a judge learn during the course of the trial that a juror intends to apply jury nullification, the court may dismiss that juror. Indeed, that was the holding of the case yourself linked. “Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court's instructions on the law and who thus threatens to ‘undermine [ ] the impartial determination of justice based on law,’ Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b).” United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). In that case, the court pointed out that nullification is a violation of the juror’s oath and is contrary to the principles of the legal system. But, as I have already said, since the jury does not have to explain the reasons for its verdict the process allows for jury nullification anyway. The jury can decide to acquit for whatever reasons it chooses since it cannot be questioned why it arrived at that decision. Unfortunately that means, as we have seen in history, that juries sometimes acquit or convict for totally inappropriate reasons, including the race of the defendant or the race of the victim.


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