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If States Are The Laboratories Of Democracy And States Rights


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Eeewww. I don't understand how they justify that. Maybe it is one of those "not relevant to the issue at hand" sort of things. Because the Federal Government does not recognize Medical Marijuana, it would be irrelevant to a Federal marijuana case?


That State's Rights thing is tricky. I think the Constitution says something about "All rights not delegated to the Federal government shall be relegated to the states".


The same sex marriage brouhaha is an easy one. The Constitution says that all people must be treated equally under the law. Therefore, ensuring equal treatment is a Federal Government obligation. The Constitution guarantees the right to free speech. Therefore, ensuring and enforcing the right to free speech is a Federal Government obligation. Claiming Medical Marijuana patient status in a Federal trial may not be relevant to the case, but wouldn't you think that a person would still have the right to speak about it in court? It seems like it would be up to the prosecutor to explain to the jury why a State Medical Marijuana patient does not have protection under Federal law.

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the constitution says we get free speech too. wheres that in the court room?


and yeah, the prosecutor can tell the jury how fed law trumps state law, all that of course, and i'm sure there will be juries that convict based on the absolute truth.

Edited by t-pain
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  • 2 weeks later...

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


That is the language of the First Amendment to the U.S. Constitution and it should not be construed to mean that anytime an entity of a governmental unit limits a person’s ability to speech what is on their mind it is a violation of the U.S. Constitution. First of all, only political speech enjoys the highest protection of the First Amendment; other types of speech, such as commercial speech or inflammatory speech enjoy limited protection or no protection at all. The U.S. Supreme has always recognized the ability of the government to impose time, place, and manner restrictions. In Heffron v. International Society for Krishna Consciouness, Inc. the Court said the restrictions on speech are reasonable if “…they serve a significant governmental interest, and…they leave open ample alternative channels for communication of the information.” [452 U.S. 640, 648 (1981)]


Furthermore, the U.S. Supreme Court has created four categories for public property in evaluating the extent of the protection afforded political speech; public forums, designated public forums, limited public forums, and nonpublic forums. Public forums are places like sidewalks and public parks, and “while [u.S. Supreme Court cases] recognize a presumptive right to use the sidewalks and parks for speech purposes, there obviously would be problems with allowing speech in the middle of a courtroom during a trial…” [Erwin Chemerinsky, Constitutional Law: Principles and Policies, 1165 (4th ed. 2011)]


Courtrooms are not places for public debate about political issues. During the course of a trial the rules of evidence of that court dictate what the attorneys and witnesses are allowed to speak and what will be recorded into the court record. In Federal Courts, Federal Rules of Evidence 104 dictates procedures involving preliminary questions. FRE 104(a) Questions of admissibility generally, states;

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

FRE 104(b) Relevancy conditioned on fact, states;

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition


What I believe you have been referring to so far in this thread is when a Federal Judge, in a preliminary hearing, disallows the admittance into evidence of the defendant’s participation in a state’s medical marijuana program.  Now what must be remembered is a judge, any judge in any courtroom, has an extreme amount of power to control conduct within their courtroom during court proceedings.  This includes not only the actions and speech of attorneys, parties and witnesses, but also spectators. So if you go watch a trial of a medical marijuana patient and during the course of the trial start declaring your opinion of the merits of the medical use of marijuana, a judge can hold you in contempt and sentence you to jail time. But anyway, if a Federal Judge makes that determination the only recourse is to file an appeal and claim the judge abused their discretion in making that determination. And the standard for finding a judge abused their discretion is very hard to meet.  


Now, while I am not a practicing attorney within the Federal Criminal System, what I believe Federal Defense Attorneys attempt (or should attempt) to raise is what is called the necessity defense. That defense to criminal charges is basically that the choice to break the law was the lesser of two evils given the situation. For marijuana patients, this seems applicable if no other medication is effective. The situations warranting this defense for medical use of marijuana were described in Raich v. Gonzales, 500 F.3d 850, 858 (9th Cir. 2007); “to either obey the Controlled Substances Act and endure excruciating pain and possibly death, or violate the terms of the Controlled Substance Act and obtain relief from [their] physical suffering.”


Now, it seems that Federal Judges that disallow this type of evidence are basing their decisions upon their interpretation of the U.S. Supreme Court’s decision in United States v. Oakland Cannabis Buyers’ Cooperative [532 U.S. 483 (2001)]. They believe that the Court’s decision in that case removed the common law necessity defense in prosecutions predicated upon violations of the CSA. However, it is far from resolved that that case actually sets that precedence, as stated by the 9th Circuit Court of Appeals; “it is not clear whether the Supreme Court’s decision in [Oakland Cannabis Buyers’] forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. Similarly, whether the Controlled Substance Act encompasses a legislative determination of values that would preclude a necessity defense is also an unanswered question.” [500 F.3d at 860 (internal situations omitted, internal quotations omitted)] While the 6th Circuit, of which Michigan is a part of, is not bound by decisions of other Federal Circuits, those decisions are still persuasive and should be argued. So a person’s participation in Michigan’s Medical Marihuana Program in and of itself might not be admissible in Federal Court, I think the patients’ medical condition that warrants the medical use of marijuana should be since it is relevant to a necessity defense.


I think everyone should also remember that until the passage of the 14th Amendment in 1868, the restirictions the Constitution placed upon actions of the government were not applicable to state governments, only to actions of Congress. So it is a misnomer to state the the Federal Government has an obligation to enforce free speech or equal protection or any other fundamental right. And if the Federal Government is the entity that is violating the individual's rights then how can you say ensuring equal protection or free speech is a Federal Government obligation. Violations of Constitutionaly protected rights must be brought by parties with standing inorder for a Federal Court to even have jurisdiction over the case. And then the U.S. Supreme Court has no obligation to hear any cases. They pick and choose which cases they will hear. It does not matter if a case actually involves a violation of some fundamental right, the U.S. Supreme Court has no obligation to hear the case.

Edited by mmurphy169
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