The court will
usually ask the assembled jury pool, from which a jury or juries will be drawn,
if anyone knows either the defendant or the plaintiff, and whether anyone has
any reason why he or she would be unable to render a fair verdict. These are
appropriate concerns and most people have no problem with questions of this
sort. We urge you to answer honestly out of respect for the defendant's
right to a fair and impartial jury.
But
what about questions which you feel invade your
privacy, or simply embarrass you? Should you refuse to answer? Or should you
spill your guts at every question? Should you tell the judge and lawyers only
what they want to hear? Or what you want them to hear? Or...?
And what about the oath you'll be asked to
take - to "follow the law as given by the court, even if you disagree with
it?" Should you cross your fingers while swearing to abide...? No one can
supply answers for anyone else to moral questions like these, so we won't try.
Nor does FIJA offer legal advice, because we're not lawyers. But, it should be
abundantly clear, we believe fully informed decisions are better than choices
made in ignorance, so we are happy to supply some considerations which may be of
value to you when you receive notice to show up for jury duty, along with some
tips to help you understand your role as a juror:
(1) Your Fourth Amendment right to privacy and
your Fifth Amendment right to remain silent apply even during the jury
selection process, or "voir dire," where rough questions are often
asked. (For example: "Have you ever been raped, madam?") Refusal to
answer may cost you an opportunity to serve, so you have a moral choice to make
if you believe that justice in this case could depend upon you being empanelled,
or you feel that you have a duty or responsibility to the community to serve on
this jury which outweighs having to make some difficult choices, including
choices which may embarrass or inconvenience you, or which will entail invasion
of your privacy.
(2) The judge is granted no authority by the
Constitution or by any Supreme Court ruling by common law or by
any traditional American legal doctrine, to require the jury to take an oath to
follow the law as he explains it or, for that matter, to "instruct"
the jury to do anything. Judges may explain to juries what the law is, and
jurors may agree to accept that explanation of the law and to apply it
accordingly, but no judge can force a juror to accept and use the law to convict
someone against his or her conscience.
(3) You cannot be punished for voting your
conscience. Judges and other jurors often rely upon guilt to persuade
hold-out jurors to abandon even a conscientious stand against the majority
"...in order to avoid a hung jury, mistrial and all the extra money that it
will cost the taxpayers..." But no one, not even the judge, has the power
to make you abandon your sense of right and wrong, even when it means you must
refuse to "go along with the majority," or fail to follow whatever
oaths you were told you "must" take before you could be empanelled.
Besides...
(4) Hung juries are OKAY. If voting your
conscience should lead to a hung jury, not to worry. There is no requirement
that a unanimous decision be reached. And the jury you hang may be significant
as one of a series of hung juries sending messages to the legislature that the
law you're working with has problems, and it's time for a change.
(5) Understanding the context in which
an illegal act is committed is essential to deciding whether the defendant acted
rightly or wrongly. Strict application of the law may produce a guilty verdict,
but your real job is justice. Once you and your fellow jurors decide that strict
application of the law to the facts has indeed proven that the law was violated
"beyond a reasonable doubt," then the hard part begins. Doing justice
may require a careful look at the context of the crime in order to decide on the
verdict (and, where juries do the sentencing after finding someone guilty, to
determine an appropriate sentence).
(6) During deliberations, it is always
appropriate to discuss whether the prosecution may be politically
motivated. Much of today's "crime wave" is made up of victimless
crimes- crimes against the government, otherwise known as "political
crimes." It does happen that individuals are singled out for prosecution as
a way of harassing them for some reason or another. If your feeling is that the
law may be well-intended, but that applying it could unduly empower the
government or have some other dangerous consequence, just remember that
"juries can acquit for any reason or no reason at all."
(7) When you are asked whether you will follow the law,
consider that the Constitution is the highest law of the land,
and any other laws which violate it are null and void (Madison v. Marbury, 5 US
(2 Cranch) 137, 174, 176 (1803)). As jurors you may decide that you have an
obligation to follow and enforce the Constitution. It is always appropriate to
ask yourself if the case at hand is likely to involve important Constitutional
questions, or a defense of the Bill of Rights. Should the judge fail to discuss
the Constitution or Bill of Rights as they may relate to the case before you,
you'll have to rely on your own knowledge.
(8) Politically,