A retired sergeant major wanted out of jury duty, but appeared as ordered and was fascinated, although he could never get those people to march in a straight line.
The sergeant major was selected at random from a cross section of the local community. At one time, statutes excused vast sections of society from jury duty. The Missouri Constitution still contains a clause allowing women to opt out of jury duty.1 One convict complained that this denied him the right to a jury drawn from a cross section of the community.
The United States Supreme Court agreed.2 The triumphant defendant was promptly re-convicted by a jury of the entire community. In 1935 a white defendant’s lawyer objected to the jury panel because it did not contain any minorities.3 The objection was overruled as a silly obstruction of justice; now it is the law.
Evading jury duty leaves justice to persons who may be less qualified.
This cross section is drawn primarily from driver’s licenses, voting lists, and property records.4 Failure to report is punishable under statute or as contempt of court. The offender is still called for jury duty.
Jury commissioners have some latitude to delay jury service in case of hardship. During the 1993 flood the Ray County, Missouri jury commissioner announced that Orrick residents were excused because their town was being evacuated. Several people got up and left; floodwaters were rising around their homes but they had reported for jury duty. This provides a standard of hardship. However, in order for a judge to excuse persons in cases of hardship, they must first report for jury duty.
A Missouri juror went home for lunch and found a new jury summons in her mailbox. The judge relieved her of the summons and passed it on to a less experienced member of the community.
Evading jury duty leaves justice to persons who may be less qualified. On occasion, a juror is discovered who does not speak English.5 A borderline retarded man was a juror in a case involving an accident between a sheriff’s patrol vehicle and a police squad car. He could remember nothing about the facts, the issues, or who won.6
A stabbing case fell to jurors who knew nothing of knives, and few had ever been in a fistfight much less a life or death struggle.7 When the supply of jurors fails, courts have ordered sheriffs into the streets to drag in replacements. Missouri law wisely allows litigants to refuse the product of such press gangs.
Potential jurors are first assembled in a hall with eccentric heating and cooling, where they are oriented to the process, and then they wait until they are called. A cushion and sweater are often welcome; books and knitting pass the time. Crisp dollar bills prove useful for the vending machines.
Generally, a jury panel consists of forty persons or more. The venire [the panel of prospective jurors] will be taken to a courtroom to have a jury selected from its number. This process is called voir dire—old Norman French meaning to “speak the truth.” The jury panel will be questioned, usually by attorneys but sometimes by the judge.
Lawyers do not pick who they want for the jury; they pick who they do not want.
These questions determine if anyone has preconceived attitudes about the facts or issues in the case. For example, to ask a person who has suffered from a fire to dispassionately consider an arson case is more than can be expected of human character. Some questions will be personal. It is perfectly acceptable to answer these questions at the bench before the judge.
If questions are not answered honestly it might force a retrial and a new jury. In that event, there will be at least twelve people who truly dislike the dishonest party. If the prosecution loses a conviction due to juror misconduct it is possible that they will be looking for revenge. Perjury charges are possible.
One character thought that he had a clever way to evade honest answers. When the panel was sworn to tell the truth, he answered, “no,” his negative obscured in a chorus of “yes.” He then felt justified in lying.8 His scheme violated the covenant of good faith. Fortunately he was more interested in parading his legal opinions, and was not selected.
People who use jury selection to make speeches are never selected. Lawyers do not pick who they want for the jury; they pick who they do not want. Persons with strong feelings regarding a party, the subject, or the system of justice will be excluded. Exclusions may be for “cause” in which the judge rules that a juror cannot be fair or the juror has prior knowledge of the parties or the case. Each party will have a certain number of “strikes” which are used to exclude jurors for almost any reason.
Whoever remains from the panel is a member of the jury (plus alternates in case of casualties among the jurors). This remnant is composed of persons who are the least objectionable and least knowledgeable about the event that is the subject of the case. It is believed that they are the best possible jury for the particular case. F. Lee Bailey was pleased to find a chemist on the jury panel for a poisoning case because he could understand the complicated evidence. However, the law does not allow such an expert jury, and the prosecution swiftly excluded the chemist.
The judge will caution the jurors not to speak to the lawyers, parties or witnesses.9 This is to avoid the appearance of improper communication, which leads to suspicion and mistrial, and twelve other people being very angry.
Some jurisdictions allow jurors to take notes, but rarely are they allowed to ask questions. Where questions are grudgingly allowed, the judge and lawyers must vet them before they are permitted to be asked.
On occasion, a judge takes the speedy trial rule to extremes and disposes of the scheduled breaks. In one such instance a juror raised his hand and asked for a break, which was immediately given. This juror was the hero of the courtroom. Songs were composed in his honor, epic poems written, and children were conceived specifically so they could be named after him.10
Some jurors have preconceived ideas of what the law says. They are often wrong.
Juries are rarely sequestered. It is expensive and a burden to all. Bailiffs are solicitous of their jurors and can often ease the inconvenience of the experience.
Some jurors have preconceived ideas of what the law says. They are often wrong. One juror proclaimed that a case was not self defense because the defendant fired on advancing armed thugs. She claimed that he could not do so unless they fired first. Giving thugs one free shot is not the law. The juror’s confidence led the jury to convict. In another such case, a juror proclaimed the defendant’s tactics to be “stupid” and therefore illegal.11 But jury instructions are provided to define what is or is not legal, and these definitions override what is in the dictionary or the Bible.
Jurors may take all evidence into the jury room. Some jurisdictions allow testimony to be read back to the jury. This may not be practical. In one case, a juror composed a list of testimony to be read back which promised to turn a ten-day trial into a career.12 Others convinced her to rely on memory.
The most important things the jury takes into deliberations are experience and common sense. In one case the victim testified that she had been raped while standing. One juror declared that it was impossible to have sex standing up. The remainder of the jury enlightened him.13
After hearing strong evidence of self defense, one juror told his fellows not to bother him until they were ready to vote not guilty. This is a problem because jurors are required to participate in deliberations. An uncommunicative juror could be removed from the jury, forcing a mistrial.14
Jurors are forbidden from undertaking independent investigation. In a British murder trial four jurors held a séance to contact the victims, who named the defendant as their killer. The conviction was overturned on the grounds, among others, that the ghosts had not been cross-examined.15
Only in the United States does the accused have a constitutional right to a trial by jury.
Jurors are told that they must follow the jury instructions. They are supposed to follow the jury instructions, but juries have a practical power to nullify the law. A Wisconsin jury, declaring that their time had been wasted, nullified a firearm possession case on the grounds that the law could not have been intended to apply to the inoffensive retarded defendant.16
Nullification is wrongly presented as a guaranteed acquittal for defendants claiming self defense. Defendants have been convicted after acting in self defense, but the danger is that once juries are told they can ignore the law, they may ignore the self defense law as well.
Only in the United States does the accused have a constitutional right to a trial by jury. Our founders, many of them lawyers, believed that justice was too important to be left to lawyers. Lawyers are taught to find law in books and computers, but not justice. The founders of this nation believed that justice is found in the common sense of twelve unbiased people chosen at random.
Militias come in all sorts.
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]
Please send questions to
|Kevin L. Jamison
2614 NE 56th Ter
Gladstone, Missouri 64119-2311
Individual answers are not usually possible but may be addressed in future columns.
This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.
- Article I Section 22(b).
- Duren v. Missouri, 99 S.Ct. 664 (1979).
- Unger, Union Station Massacre, Andrews McMeel Publishing Kansas City MO 1997 at 202.
- Refusing to register to vote does not get one out of jury duty. It may get people elected who pass laws concerning jury duty.
- Liddy, Will, St. Martin’s Press 1981 at 385.
- I knew him.
- Burnett, A Trial by Jury, Alfred A Knof pub. NY 2001 at 112. This book should be read by all lawyers doing criminal trials (not right now—it will keep until they finish the magazine).
- Email in author’s possession.
- Despite this instruction I frequently have jurors speak to my client or me during the trial, which requires me to report the contact to the judge.
- Not just then, but later on.
- “Enter the Jury Room” CBS Reports Transcript: Burrells Box 7 Livingston NJ 07039. Video 1-800-934-NEWS. Videos of jury deliberations are rare and not done without jury approval.
- Burnett, A Trial by Jury, op cit at 105.
- And perhaps opened a new world for him.
- “Judge outs ‘failing’ juror from Reginald Denny case” Kansas City Star 12 October, 1993 at A-3 com 4.
- Weird News, Kansas City Star August 17, 1994 at F-1 clm 6. R. v Young,  QB 324.
- Video, Inside the Jury Room, Frontline April 8, 1986.