IF YOU'RE CALLED FOR JURY SERVICE: Show up, of course, with your conscience as your guide.
IF YOU'RE CALLED FOR JURY SERVICE:
Show up, of course, with your conscience as your guide.
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, ourselves included, 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
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 empaneled, 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 and mistrial, and all the extra money that 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
(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
(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". And 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. And 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
(8) Politically, you can do more good as a trial juror than in
practically any other way as a citizen: you can be part of a
feedback loop of community opinion on the law if the case you hear
involves a questionable law, a law which violates your sense of justice
or your conscience. When else will your opinion be taken so seriously,
or have so much good impact on the rules we live by?
So far in America, a defendant is still presumed innocent until proven
guilty "beyond a reasonable doubt." You'll do fine as a juror as long as
you keep in mind that "innocent" and "guilty" are moral judgments for
you to make, with the facts of the case and the law as your guides.
Hang onto the fact that you, the jurors, are the most powerful and
important people involved in the case, and finally that it is your
personal responsibility to use your own vote to prevent injustice if it
comes down to that.
You are nobody's rubber stamp...at least, you'd better not be, because
you--not the judge, nor the prosecutor, nor the defense team, nor the
bailiff nor the jailer nor the janitor--you stand to receive the credit or
blame for your decision. You signed on as "conscience of the
community", and while you cannot be punished for doing a poor job,
a job well done can be of inestimable personal, social and political
value. You have a lot of power as a juror, and we urge you to use it
E-Mail Fredric L. Rice / The Skeptic Tank