I don't get it; jurors are selected based on how they claim will decide? That's all kinds of messed up.
1. 12 jurors are seated.
2. the prosecution asks questions of the jurors, either as a group (eg, "raise your hand if X") or individually.
3. the defense does the same thing
4. the prosecution can excuse any jurors they think are not suited for the case
5. the defense can do likewise
6. If less than 12 jurors remain, enough new ones are seated to bring the number back to 12, and the process repeats
And the questions the prosecution asks are often framed like "Is there any reason you would fundamentally be unable to return a 'guilty' verdict in this case?" or "is X a reason you would not be able to return a 'guilty' verdict?" etc.
At which point, an honest person who believes jury nullification would apply here, would have to say "Yes, I would refuse to vote guilty in this case because I think the law is wrong" or whatever. Of course if you do that, you're basically asking to be excused.
In my case, they never used the phrase "jury nullification" in the selection process, but they asked questions that roughly corresponded to asking about that.
Also, I'm not sure if there is a limit to how many jurors each side can excuse. In the case where I served, quite a few jurors were excused by one side or the other, but we didn't come close to exhausting the pool of candidates (which was, I believe, somewhere between 50-60 people).
The plaintiff / defense teams are allowed to remove an limited number of jurors unless the removal is among a list of valid exempt causes (in which case the removal is exempt from the limit). See: http://en.wikipedia.org/wiki/Peremptory_challenge
The process can become very very thought out in high profile cases - there are psychologists hired to advise litigators on how favorable a potential jury member might be, and the list of potential jurors for a given day can be retrieved ahead of time and background checks run each one (all within the rules).
Here is an intresting article from one of these "Jury experts" discussing the process: http://www.americanbar.org/publications/youraba/201103articl...
His argument was that I was the only one even close to the age of the defendant left on the jury, and that by removing me he would be removing all of the defendant's "peers." (He was young; I was young.) The prosecutor withdrew his challenge, and I stayed. Funny thing was, I was pretty anti-drug at the time, so it could have backfired.
But I ended up being the jury foreman and we acquitted without much debate after someone decided to ask if anyone in the room actually thought he was guilty. They didn't really have anything on the kid; the trial was a total waste of taxpayer's money.
But you have an excellent point: If anyone writes online about supporting jury nullification, odds are good they'll get a challenge-for-cause any time they're in jury selection. At least if they're easily traced by name to those comments.
In my case it was a civil trial and he (the plaintiff's attorney) asked everyone to raise their hands if they thought they could follow the instructions of the court.
I kept my hand down.
He told me to raise my hand.
I told him I had some opinions on jury nullification.
He looked at the judge.
The judge didn't say anything.
He then asked me what my opinions were.
I said what I thought the definition was for "jury nullification", and that ultimately I have no problems disregarding the instructions of the court.
I was then, most immediately, dismissed from jury duty. The first person out of that room.
It was very nerve wrecking having to do that (being in the court room for the first time, and all that). But worth it.
*The case was something about the "fair value" of someone's property that was taken by the state (and DOT) due to road construction ("eminent domain" maybe).
You got to make a point to a small room full of people. You didn't, however, get to have any effect on the verdict, so ultimately your opinions on jury nullification had no effect except to get you kicked off a jury. Unless you wanted to get kicked off the jury, that doesn't seem worth it to me.
I was not paneled on the jury. In my case, a large number (>100) jurors were dismissed for what did not appear to be any reason, so it may have been something else I said or something I wrote on the questionnaire they gave us. I was also surprised by the number of dismissed jurors, since I was led to believe (mostly, I think, by Law & Order) that there was a limit on the peremptory dismissals.
On the elevator on the way out, other dismissed jurors congratulated my on a novel way to avoid jury duty. This annoyed me, since I would have really liked to have been on that jury. Although I agree with the article that juries should have more powerful, I don't see how a believer in nullification can get on a jury without lying.
If you're going into a case knowing you'll say "guilty" or "not guilty" without actually hearing the facts of the case, you should get kicked off the jury, independent of your belief in jury nullification. If you plan to decide based on both the law and the facts of the case, you should listen very carefully to the questions asked, to ensure that your boolean answers remain truthful.
Question: "Do you have a problem with the law in question?" Unspoken answer: "Depends on the facts of the case." Boolean answer: "No."
Question: "Would you be able to return a guilty verdict?" Unspoken answer: "Yes, I have the ability to do so, and in general a belief in jury nullification means I want to decide based on the facts of the case as well as the law, which the constitution of my state specifically gives juries the power to do." Boolean answer: "Yes."
They didn't just ask if I could return a guilty verdict, either -- they asked if I would return a guilty verdict based on the law as explained by the judge if I felt that the facts supported the verdict. To be honest, I did answer yes to this one, although I did feel a twinge and my hesitation was palpable.
As for not knowing whether you'll say "guilty" or "not guilty", that's fair. They did describe enough of what the charges were that I find it hard to believe that I would convict, unless I exercised my power of "jury expandification", which would require me to convict them of the charge presented if I felt that they were guilty of other crimes, to make sure that the defendant received some punishment.
I didn't intend to suggest white lies; I consider the responses I suggested entirely truthful, just carefully chosen. :)
> As it was, they didn't ask me anything so nice as "do you have a problem with the law in question"; they asked several questions related to that, including "do you have any feelings about drug legalization".
That could certainly make it more difficult. Depending on the wording of the questions, you may or may not have had the ability to give a truthful answer that would keep you on the jury. I certainly would not advocate lying.
> They didn't just ask if I could return a guilty verdict, either -- they asked if I would return a guilty verdict based on the law as explained by the judge if I felt that the facts supported the verdict. To be honest, I did answer yes to this one, although I did feel a twinge and my hesitation was palpable.
"if I felt that the facts supported the verdict" gives you all the leeway you need to say "yes" without reservation.
Unspoken thought: "In and of and by itself?" Spoken Answer: "No." Unspoken thought: "I may however have a problem with the application of the law."
Question: "Would you be able to return a guilty verdict?" Spoken Answer: "Yes." Unspoken thought: "If the plantiff can shown what harm the defendant has caused to the non-consenting victim of accused crime."
Update: If the application of the "law" would lead to an unconscionable injustice... such as punishing (or condemning or reprimanding) a human for something which has not harmed anyone against their will.
If they didn't ask if you "won't have a problem when it comes to deliberations" you can reasonably start disagreeing with the law the more you understand how this law is applied to real people in real cases.
Yeah, I had more or less the same thought. In my own case, I do believe in Jury Nullification; it just happened that the case was a property crime case (breaking and entering, larceny) which is one of the areas where the law seems reasonably just. So I didn't speak up or anything, and ultimately did serve on the jury.
Lawyers are obliged to always offer the best possible defense to the extent of their abilities, and that includes selecting a biased jury if that's possible.
A jury pool has never been meant to represent a random sample of the general populace.
Indeed that would be enormously counterproductive: in, say, a Klan dominated county we might expect a random sample of the county populace to turn up 9 racists in a sample of 12, but that is not a jury makeup likely to result in a fair verdict for a black defendant.
All of these questioning and dismissal mechanisms exist to make sure that the jury pool is absolutely NOT 12 random people, but is instead as close to a collection of 12 people who are believed to be able to return an impartial verdict as can be reasonably managed in the opinion of the court, by balancing the concerns of both prosecution and defence council.
It was very focused on being impartial and following the law.
I think different courts and jury stylings have different rules, but I am unsure where and how.
Nullification is most famous for its history in racially-charged trials in the American South. Southern jurors would refuse to enforce criminal laws if the accused was white and the victim black. Nullified jury cases were one of the tensions that led to the American Civil War.
That's one of the justifications for the power to dismiss jurors - for the sake of justice, law must also have the power to protect minorities who are very unpopular, even, and indeed especially, if the unpopularity is so severe that very few randomly selected people would agree to enforce a law on the minority's behalf.
The problem, of course, is that just because there is no guarantee that nullifiers are right, it does not follow that they are wrong either. However, because jury nullification has its greatest historical significance in the United States when it was used to persecute blacks, legal doctrines which support jury nullification are, by association, not very popular, while legal tactics which allow prosecutors to make their case in the face of potential jury nullification are considered acceptable.
Sure, but in that case it was Juries refusing to enforce the (truly odious) Fugitive Slave Acts.
The idea is to find jurors as close to the "impartial" ideal as possible.
So - if a murder case is being tried - and someone whose family member is a murder victim is called to the jury - they're probably not a great impartial arbiter in that case.
It's called Vior dire, and certainly not unique to the United States: http://en.wikipedia.org/wiki/Jury_selection#Voir_dire
But selecting juries based on that trait (or any trait for that matter) is in direct conflict with one's right to trial by a jury of his peers (presumably defined as the general populace). Once you predicate the selection process, you skew a uniform sampling of "peers" and the jurors selected are no longer representative of one's "peers".
(Not arguing, just trying to understand.)
There is also a considerable body of federal case law applying the equal-protection clause of the Fourteenth Amendment to the process of jury selection. Since 1880, when the U.S. Supreme Court overturned a black man's conviction for murder due to the systematic exclusion of blacks from local juries [1], federal courts have consistently ruled that jurors must be selected indiscriminately from eligible members of the community. This is very close to the concept of a "jury of your peers".
1. See clause 29 of the 1297 document: http://www.archives.gov/exhibits/featured_documents/magna_ca... ; the further origin is the first Magna Carta of 1215.
You'll find that jurors with higher education are often eliminated (prosecutors hate educated jurors, they tend to be harder to convince), jurors with law experience (even if it's as simple as a law class in high school) also tend to be eliminated, because they know at least a little something about standards of proof and nullification, etc.
The list of things that you can be eliminated for by either the judge or one of the attorneys (who get a limited number [3, I think] of eliminations) is staggering.
Yeah, it is a little weird, but it's hard to think of a way to fix it without making it potentially much more abusive.
The Jury selection process, from what I understand, tries to exclude anyone that might know about nullification specifically because they don't like the Jury having more social power than the Judge.