The 7 Elements of Jurisdiction
THE 7 ELEMENTS OF JURISDICTION
In fact, jurisdiction is almost never even addressed. But to win, jurisdiction MUST be challenged by the individual, and if challenged successfully, the case is dismissed.
There are seven elements of jurisdiction, all of which must be proved by the prosecution if challenged. If not challenged, it will ALWAYS be assumed by the court that competent jurisdiction is proved and accepted by all parties. If any element of the seven is not proven on the record, the case must be dismissed.
If jurisdiction is to be successfully challenged, it must be at the commencement of proceedings, but it can be challenged at any time. To allow the trial to continue at all is to admit to jurisdiction. Below are the seven issues of jurisdiction in any and every court case. Remember, if any one of these seven are not proven beyond a reasonable doubt, the case cannot continue.
1. The accused must be properly identified, identified in such a fashion there is no room for mistaken identity. The individual must be singled out from all others; otherwise, anyone could be subject to arrest and trial without benefit of "wrong party" defense. Almost always, the means of identification is a person's proper name, BUT ANY MEANS OF IDENTIFICATION IS EQUALLY VALID IF SAID MEANS DIFFERENTIATES THE ACCUSED WITHOUT DOUBT. (There is no constitutionally valid requirement you must identify yourself, see 4th Amendment; also see, Brown v. Texas, 443 US 47 and Kolender v Lawson, 461 US 352.)
2. The statute of offense must be identified by its proper or common name. A number is insufficient. Today, a citizen may stand in jeopardy of criminal sanctions for alleged violation of statutes, regulations, or even low-level bureaucratic orders (example: Colorado National Monument Superintendent's Orders regarding an unleashed dog or a dog defecating on a trail). If a number were to be deemed sufficient, government could bring new and different charges at any time by alleging clerical error. For any act to be triable as an offense, it must be declared to be a crime. Charges must negate any exception forming part of the statutory definition of an offense, by affirmative non-applicability. In other words, any charge must affirmatively negate any exception found in the law.
3. The acts of alleged offense must be described in non-prejudicial language and detail so as to enable a person of average intelligence to understand nature of charge (to enable preparation of defense); the actual act or acts constituting the offense complained of. The charge must not be described by parroting the statute; not by the language of same. The naming of the acts of the offense describes a specific offense whereas the verbiage of a statute describes only a general class of offense. Facts must be stated. Conclusions cannot be considered in the determination of probable cause.
4. The accuser must be named. He/she may be an officer or a third party, but some positively identifiable person (human being) must accuse; some certain person must take responsibility for the making of the accusation, not an agency or an institution. This is the only valid means by which a citizen may begin to face his accuser. Also, the injured party (corpus delicti) must make the accusation. Hearsay evidence may not be provided. Anyone else testifying that they heard that another party was injured does not qualify as direct evidence.
5. The accusation must be made under penalty of perjury. If perjury cannot reach the accuser, there is no accusation. Otherwise, anyone may accuse another falsely without risk.
6. To comply with the five elements above, that is for the accusation to be valid, the accused must be accorded due process. Accuser must have complied with law, procedure and form in bringing the charge. This includes court-determined probable cause, summons and notice procedure. If lawful process may be abrogated in placing a citizen in jeopardy, then any means may be utilized to deprive a man of his freedom, and all dissent may be stifled by utilization of defective process.
"The essential elements of due process are notice and an opportunity to defend." Simon v Craft, 182 US 427.
"one is not entitled to protection unless he has reasonable cause to apprehend danger from a direct answer. The mere assertion of a privilege does not immunize him; the court must determine whether his refusal is justified, and may require that he is mistaken in his refusal." Hoffman v. United States, 341 U.S. 479 (1951)
7. The court must be one of competent jurisdiction. To have valid process, the tribunal must be a creature of its constitution, in accord with the law of its creation, i.e., Article III judge.
The first six elements above deal primarily with the issue of personal jurisdiction. The seventh element (also element #2) addresses subject matter and territorial jurisdiction. Subject matter jurisdiction is conferred by acts controlled by law; territorial jurisdiction attaches by venue of the parties in relation to the court and to any trans-jurisdictional acts and/or activities of the parties (extended territorial jurisdiction is conferred by controversial long-arm statutes).
SUMMING UP the LAW and the POLITICS
Lacking any of the seven elements or portions thereof, (unless waived, intentionally or unintentionally) all designed to ensure against further prosecution (double jeopardy); to inform court of facts alleged for determination of sufficiency to support conviction, should one be obtained. Otherwise, there is no lawful notice, and charge must be dismissed for failure to state an offense. Without lawful notice, there is no personal jurisdiction and all proceedings prior to filing of a proper trial document in compliance with the seven elements is void. A lawful act is always legal but many legal acts by government are often unlawful. Most bureaucrats lack elementary knowledge and incentive to comply with the mandates of constitutional due process. They will make mistakes. Numbers beyond count have been convicted without benefit of governmental adherence to these seven elements. Today, information is being filed and prosecuted by "accepted practice" rather than due process of law.
See Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client: The attorney's first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called "wards" of the court in regard to their relationship with their attorneys. After you have read the foregoing, ask your attorney to see a copy of "regarding Lawyer Discipline & other rules"; Also Canons 1 through 9.
Corpus Juris Secundum assumes courts will operate in a lawful manner. If the accused makes this assumption, he may learn, to his detriment, through experience, that certain questions of law, including the question of personal jurisdiction, may never be raised and addressed, especially when the accused is represented by the bar. (Sometimes licensed counsel appears to take on the characteristics of a fox guarding the hen house.)
Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See: McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.
NOTE: The only way such questions jurisdiction will have force and effect is if the general public becomes aware and concerned with justice being based upon law and not just policy based on a facade of law.
"Be strong and of good courage, do not fear nor be afraid of them; for the LORD your God, He is the One who goes with you. He will not leave you nor forsake you." - Deuteronomy 31:6
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