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Preparing for Jury Duty

Jury duty is as important to citizenship as voting  -  maybe more so.  Certainly, a citizen has more influence and power when serving as a juror than as a voter.

It is in the jury room that citizens get to actually influence the system to work toward Americans' highest commonly held political values . . .    the values we pledge to when we pledge allegiance to the flag of the of the United States of America, and the Republic to which it stands:

Liberty and Justice for All

Jury duty is a serious responsibility.

In most civil cases, decisions that juries make in contradiction to the rules laid out by the law and the court can and will be overturned by the judge or the appeals process.  The role of a civil court jury is to do justice in disputes between parties.

The doctrine of jury independence is primarily aimed at protecting individuals from governmental abuse.   That is the domain of criminal trials (and civil trials where government is suing).

So, if you are on a normal civil trial, do the best you can for justice within the directions of the court.

If you are in a criminal trial, in the vast majority of cases, the law will be just, and justly applied, and the jury's role will only to determine guilt or innocence and, if guilty, sentencing.   Once again, the court's instructions will help justice be done.

But, you may actually get on a jury of one of those rare cases where the law is a good one, but is being applied in an unjust way.  Or rarer still, where the law, itself, is unjust or unconstitutional.

That is when you must decide whether to follow the government when it is doing wrong  -  or your conscience.   Or decide to follow the peer pressure of other jurors  -  or your conscience and hang the jury, if you must, to see that justice is done and liberty preserved.

It is when your moral code tells you that what the government is attempting to do in the trial is wrong that you have to remember your role as a juror.  As a juror, you are a representative of the people of your state and the nation.  In America, the people rule.  The judge is your employee and advisor, albeit one to be respected as a learned and powerful.  The judge has spent a lifetime studying the law, and should be given a respectful hearing.   The judge also has the power to put you in jail for certain inappropriate behavior.   But the judge cannot jail you for voting your conscience in the jury room.   That is a power that has been respected for centuries as the essence of what the jury is all about.

One of the major roles of the jury is to serve as a board of directors for the government, reviewing how the employees of the people in the government are doing.  One of your major roles as a juror is to make sure the government does not go too far.  To make sure that liberty and justice for all is maintained.

Review of the law and its application is the reason why the jury system was formed in the first place.  The nobles who forced the king to write jury power into the Magna Carta did not do it because they thought that they were better judges of fact than the court.  They did it as a way to protect themselves from arbitrary application of power by the government.

Because current Texas law allows prospective jurors to be challenged and struck from the jury simply because the citizen is opposed to the law being prosecuted, fully informed and conscientious citizens may have difficulty being seated.  The article below discusses the jury selection process.

 

Surviving Jury Voir Dire

By Clay S. Conrad

How can FIJA advocates keep from getting kicked off of juries, by the Judge or by the Prosecutor? Frustrated FIJistas regularly report being excluded during voir dire (jury selection). But if our advocates can't get seated on juries, FIJA is limited in its ability to affect the law, or to see justice done in SPITE of the law.

Voir Dire, which is French for "to speak the truth," consists of having the Judge, the Prosecutor and the Defense Attorney each ask the jury a series of questions. It exists for two reasons. For the most basic, it allows the Court to find and eliminate partisans - the Defendant's brother, the arresting officer, etc. Going down the excludability ladder, it allows both sides to challenge jurors for bias, for familiarity with facts or witnesses, etc.

The rules for exclusion of jurors are spelled out in the Code of Criminal Procedure (CCP). First, FIJA members should realize that some veniremembers are absolutely disqualified. For instance, if a veniremember is under 18, or is not a citizen of Texas, the veniremember may not legally serve. The Court is required to exclude such jurors from service.

More importantly, veniremembers may be challenged FOR CAUSE. These challenges are unlimited in number, and are spelled out in CCP Art. 35.16. A juror may be challenged for cause if he:

1. Is not qualified to vote;

2. Has been convicted of a theft or felony;

3. Is under indictment or other legal accusation for a theft or felony;

4. Is insane;

5. Has "such a defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render him unfit for jury service, or that he is legally blind, and the Court in its discretion is not satisfied that he is fit for jury service in that particular case";

6. Is a witness in the case;

7. Served on the Grand Jury which indicted the defendant;

8. Served on a Petit Jury in a former trial of the case;

9. Has a bias or prejudice in favor of the State or the Defendant;

10. Has established a conclusion as to the guilt or innocence of the defendant that would influence him in his action in finding a verdict;

11. Cannot read or write;

12. Is related to either the defendant or the victim;

13. In a capital case, has conscientious scruples in regard to the infliction of the death penalty (only to be used by the Prosecution); or

14. Has a bias or prejudice against any of the law applicable to the case.

If the Judge finds the challenge to be good, he MUST exclude the juror. It is not discretionary; failure to exclude will be reversible error.

Additionally, both the Prosecution and the Defense have a limited number of PEREMPTORY CHALLENGES. In a misdemeanor case, both sides have three, in most felonies, ten, and in capital cases, both sides have fifteen. Peremptory challenges may be exercised for any reason or for no reason whatsoever, EXCEPT that they may not be used to exclude women or minorities from the jury merely because of their gender or race. (See CCP 35.261, Batson v. Kentucky, 476 U.S. 79 (1986)). Peremptory challenges are used to "stack" the jury, as well as the attorneys are capable of (they attempt to get people whom they believe are friendly to their side, by excluding the ones they believe will be really bad to their side.)

Many lawyers believe that the intelligent use of peremptory challenges is the most important skill of a good trial lawyer; yet research shows that few lawyers are good at it. Perhaps that is something to be glad about; try as they may, most jurors will not be so plainly "defense" or "prosecution" jurors that voir dire is much better than a crap shoot.

It certainly is frustrating for a veniremember, especially a FIJA member, to be excluded from jury duty. They have taken time from work, have submitted themselves to questioning, and have been rejected - almost always taken as a personal affront. Yet FIJA members often have only their own eagerness to blame for their exclusion, as I have tried in my answer to the E-Mail post below.

[The following exchange of posts appeared on a FIJA echo on a BBS no longer in service.]

From: LZ

To: all Msg #43, May-16-96 00:27:00

Subject: fija

LZ> The FIJA got me out of jury duty too. [Here is] the transcript [of my dismissal]:

Judge: Is there anyone here that believes that they should not follow the instructions of law given to them by the court.

Me: Yeah, I guess I do. You mean the fully informed Jury?

Judge: Hold on, sir. I don't want you to taint the panel. I'll just ask you a couple questions.

he asked my name and juror #

Judge: okay, Mr. LZ, you heard me explain-- you believe that you would not --- and you have to answer yes or no, because I don't want to taint the panel. You would not be able to follow the instructions of law given to you by the court? Just answer yes or no.

Me: Depends if I think the law is legal.

Judge: Well, all right. And I'm saying to you, it's not your judgment of what the law may be. The court's responsibility to tell you what the law is----

Me: Not if I'm in a jury. It's my responsibility.

Judge: Okay, well, I think we've heard enough from you, sir, in terms of your responsibility. You're not giving me direct answers. The answer I'm asking you is if you say to yourself and tell me, "Judge, I know you have responsibility to tell me what the law is, but the fact that you've told me what the law is isn't going to change my mind at all. I believe that I have an absolute right to determine what the law is." Is that your position?

Me: That's right.

Judge: All right. Thank you. Then we'll excuse number 48. Report back to the jury commissioner. Okay, We're not--- we're not being incriminatory to anyone or condemning anyone's beliefs, but that's the only way we can operate.

 end of transcript

Now think of this in light of John Adams, our second president who had this to say about jurors:

"It is not only his right, but the duty....to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

In 1895, the U.S. Supreme Court formally recognized jury nullification in Sparf vs. United States. The court held that juries have the power to return verdicts contrary to law and evidence. 

Taken from the Arizona Republic by Richard Lessner Deputy Editor of the Editorial Pages.

I was denied the right to serve on a jury by this judge and would like to know where I should go to file a complaint.

From: Clay Conrad

To: LZ Msg #44, May-18-96 10:12:50

Subject: fija

It does not appear that you wanted to serve on the jury.

In voir dire, if you intend to serve, the less said, the better. And if you do want to make a speech in voir dire, it should be aimed at informing the other jurors as much as possible.

Finally, the juror does not determine what the law IS, so much as he determines whether the law should or should not be applied in the case before him.

Even the best laws can be misapplied, and when misapplied should be nullified. There is no human way to write a law so complete and perfect that an ambitious prosecutor can't find an excuse to charge a morally innocent person with its violation...

As for any "violation" of your rights because you were excluded as a juror, don't waste your time. The rights involved belong to the people on trial, not to the jurors, with one exception: racial or gender discrimination in jury selection ("Batson" violations.) The Court has every right to exclude someone who has made themselves excludable under the Code of Criminal Procedure. I don't know the specifics for your state - or even what state you are in - but I do know enough to assert that any Court in America will exclude a juror who answers as you did!

HINT: NEVER mention FIJA in voir dire.... NEVER answer more than the bare minimums. If the judge asks if you "CAN" do something, always answer yes if the action would be physically possible to you... he didn't ask if you WOULD...

After you are seated, if you believe nullification is an appropriate response, tell the other jurors that you do not believe the defendant is guilty, because you don't believe the law should be applied in this case, and tell them why. Then try to show them that they have the power to do what is right, and that that is why we have trial by jury. Don't quote, don't rely on authority. They can't check your quotes or look at the authorities.

Talk to them as one individual to another (11), and put the doctrine in your own words. Convince the other people prone to vote to acquit that a hung jury is not a bad outcome, if the panel disagrees. A compromise - voting for conviction when not convinced beyond a reasonable doubt, or voting guilty on lesser charges in order to short-circuit the process and go home - IS a bad outcome, and is very much a violation of their duty. Juries are empowered to HANG, but never to COMPROMISE.

What needs to happen is for people to get to sit on juries who know something about nullification, and then to politely bring other jurors - who believe that an injustice is being done - around to an understanding of the power which is in their hands.

If you are lucky, the defense attorney should have given you all the ammunition you need, while in closing arguments, voir dire, etc.

COURTS DO NOT LIKE TO EXCUSE JURORS. What they want to avoid is "busting the panel," excusing so many jurors for cause that they don't have enough left to try he case. If you avoid a dogmatic posture, and if you are respectful and say the minimum, chances are the Court will not find cause to excuse you. (You may still be struck with a peremptory challenge; even if you had not been struck for cause, I am sure, in your case, that the prosecutor would have sent you out of their expeditiously anyway. So, so far as you were concerned, there was no harm done.)

Let me give you a few examples of how the answers could have gone.

1> Judge: Is there anyone here that believes that they should not follow the instructions of law given to them by the court?

FIJA jurors can't know whether they should follow the instructions of law until they have heard the case and the instructions. AS A GENERAL RULE, the instructions probably SHOULD be followed. We should assume the system to be just until proven otherwise. So we should, AS A GENERAL RULE follow the instructions of the court, and therefore I would not raise may hand in

response to this question.

2> Judge: okay, Mr. LZ, you heard me explain-- you believe that you would not --- and you have to answer yes or no, because I don't want to taint the panel. You would not be able to follow the instructions of law given to you by the court? Just answer yes or no.

FIJA jurors would be ABLE to follow the instructions; whether they WOULD do so is another question, and not one the court asked. So the answer to this is no, it is not true that you would not be able to follow the instructions... got it?

3> Judge: Well, all right. And I'm saying to you, it's not your judgment of what the law may be. The court's responsibility to tell you what the law is----

LZ: Not if I'm in a jury. It's my responsibility.

Here, you are being combative, when if you had answered either of the above questions more discreetly, this question would never have been almost asked - I say almost because you never let the Judge finish.

And you are WRONG. It IS the court's responsibility to tell you what the law is; it is your responsibility to decide whether the law should be applied - whether to convict or acquit.

4> Judge: Okay, well, I think we've heard enough from you, sir, in terms of your responsibility. You're not giving me direct answers. The answer I'm asking you is if you say to yourself and tell me, "Judge, I know you have responsibility to tell me what the law is, but the fact that you've told me what the law is isn't going to change my mind at all. I believe that I have an absolute right to determine what the law is." Is that your position?

LZ: That's right.

This is a misstatement of the jury nullification doctrine. The juror does not have an absolute right to determine what the law is in every instance. For example, if a person is innocent according to the Court's instructions, the juror does not have a right to CONVICT. Nullification is a doctrine of mercy, not of anarchy.

Secondly, the juror should listen to what the Court says; he should not determine before hearing what the court says that it won't change his mind at all. Many jurors may have their minds changed and decide TO nullify after hearing the Court's charge.

---------

Even worse, your answers were unenlightening to the other jurors. They probably just dismissed you as a kook, without knowing why you were being so adamant or what you were being adamant about. You speak of your responsibility, without explaining anything about that responsibility: a better answer (for someone who wanted off the jury) would have been: it is my verdict, your honor, and that is a serious responsibility. I could not participate in committing injustice, if following the law led to an unjust result.

THEN the Court would have to deal with either a jury of nullifiers, or dismiss the entire panel - a wasted day in Court, which the Judge would not want to have to deal with...

The most important thing, in the end, was the DEFENDANT. Did your attitude and actions make it more or less likely that he would have at least one potential nullifier on his jury? I would say less likely - you got kicked off - and he may well have been unjustly convicted.

Perhaps remembering that a morally innocent man may well be sitting in prison, being beaten and raped by his cellmates while his wife files divorce papers against him and his family goes on welfare may somewhat blunt your sense of self-righteousness in so belligerently challenging the Court.

Without having to have told one lie in Voir Dire, you could have arranged to have been seated in that case - just say the minimum and answer honestly, candidly, but precisely! And that man - a victim of the system - would still have his life in one piece. Think about it...

___________________________________________________________________________

Consider what is at stake here. A FIJA advocate may choose to spout off in voir dire, in order to teach that pesky judge a thing or two... or he or she may choose to wait until jury deliberations start, and then REALLY teach the judge a thing or two... Which is more effective? Which approach would you want the veniremember to take, if YOU were on trial?

FINAL COMMENT: I AM NOT ADVOCATING HAVING ANYBODY EVER, UNDER ANY CIRCUMSTANCES, LIE DURING VOIR DIRE. If you are forced to announce that you are a FIJA member (Have any of you ever heard of the Fully Informed Jury Association?), admit it. But answer very, very carefully... if asked if you are a member of the organization, but have never officially joined, or if your dues have lapsed, the answer would be NO. Say nothing!

And if you must answer a question which will lead to your being excluded, blurt out as much about the doctrine as you can! Try to make sure that every single veniremember knows as much as possible about jury independence, and that under NO circumstances must a jury commit injustice. You may "bust" the panel; you may force the Judge to send them all home, and you may even get seated on the jury (the judge may be embarrassed to disqualify a juror who has stated he believes in justice, and count on the Prosecutor to use a peremptory challenge on you.)

Just remember that a criminal trial is not the place for political grandstanding or membership recruitment. Our goal here is not to convert, not to show off, and not to challenge the authority of the Judge or Prosecutor, but to see JUSTICE done. Keep your eyes on the prize, and when you get on that jury, do the right thing!

Send mail to tomglass@juryduty.org  with questions or comments about this web site.
Last modified: November 27, 2003