Surviving Jury Selection
In order to nullify the law, you need to survive jury selection (or ‘voir dire’), and be seated on the jury. When you appear for jury duty, you are a “venire-member.” The venire is the group (or ‘panel’) of citizens from which a jury is chosen. The jury is chosen by removing members of the venire. After both sides have removed the venire- members they object to, the first twelve (or six, or eight, depending on the case and the state) venire-members remaining are sworn in as the jury.
Venire-members can be removed in two ways: they can be stricken “for cause,” or through use of a peremptory strike. Both sides can remove as many venire-members “for cause” as they can find lawful reasons to strike. A “for cause” strike is based on a venire-member being legally ineligible to serve, because, for example, he or she has a felony or theft record, is not a citizen, is insane, or, most importantly, has indicated that he or she is unable or unwilling to apply the law.
Peremptory strikes can be used by either side for any reason other than race or gender. Depending on the case and the jurisdiction, each side may have three to fifteen peremptory strikes (even more in death penalty cases.) Generally, parties strike venire-members they believe would be unlikely to vote for their side. The prosecutor and the defense attorney get to question venire-members about their attitudes, opinions and behaviors in order to “intelligently” exercise peremptory challenges.
What this means is that if you show up for jury duty and proudly announce “marijuana should be legal, prohibition is immoral and unconstitutional and I would never vote to convict anyone in a weed case,” you will immediately be removed by the prosecutor “for cause” in a marijuana case and you will have absolutely no impact on the outcome of the case. Similarly, if you say “police never arrest innocent people,” the defense will strike you. You must appear neutral and fair to both sides to be seated.
However, you may not lie during voir dire. Lying may constitute perjury or obstruction of justice – felony offenses. The clue to survival is to give neutral but truthful answers. This can take some care and serious thought, depending on the exact questions you are asked. However, there are some general rules. One of them is that you should never elaborate on your answers to voir dire questions, or volunteer answers to questions that have not been asked. A typical question is to ask venire members what organizations they are members of. In anticipation of this question, you may consider resigning from any legal reform or issue organizations when you get your jury summons. (You can always rejoin later.)
Other typical questions, and appropriate unobjectionable neutral answers, include:
What magazines and newspapers do you subscribe to or read regularly? (Time to cancel some subscriptions – at least temporarily! And time to start reading Popular Mechanics, PC World, Money and People. Don’t mention U.S. News & World Report or The Economist. People interested in world events tend to be opinionated independent thinkers. You want to appear a neutral, law abiding middle of the road taxpayer.)
Do you know anyone with a drug problem? (Yes, but not well. This is usually true because such people never allow anyone to know them well. Of course, if your spouse, parent or child is in rehab, it’s time to fess up.)
How do you feel about people accused of evading income taxes, illegal possession of firearms, or selling marijuana? (They deserve fair trials, like anyone accused of a crime.) Do you know anyone who has been accused of (breaking target law)? (If so, the answer may be “yes, but not well.” If they ask for an example, they will stop after one, so there must be someone you knew distantly who was accused of breaking this sort of law.) If you know someone who was acquitted on such charges, say so – it lets the venire know false accusations happen. Answer in short, to the point sentences, and do not digress, volunteer or elaborate.
How do you feel about the government’s use of paid informants or informants who are receiving reduced sentences in return for their testimony? (Their testimony has to be examined carefully, but fairly.)
Do you have such strong feelings about this type of case that you would be unable to be a fair and impartial juror? (Of course not! What you want is a fair and just outcome.)
If asked whether you are opposed to gun or drug laws, you can truthfully say you have questions about how effective gun or drug laws are. If asked if you are able to put your opinions aside and vote guilty, you can always say yes. (You are also able to shove your arm down a kitchen garbage disposal. That does not mean you are committed to doing so.) Take the question literally, and answer as briefly and generally as you truthfully can.
In the Jury Room
Once on the jury, do not mention nullification during jury service unless the “not guilty” votes are in the majority. If the judge believes a juror is nullifying he may remove her, declaring a mistrial or allowing the remaining jurors to decide the case. First, however, the judge must question the juror. If the juror has doubts on the facts, she cannot be dismissed. If she justifies her “not guilty” vote by saying “I can’t convict a young woman for protecting herself,” she’s gone. If she says “I think Officer Krupke lied – did you see his body language?,” the judge will return the juror to deliberations. Reasonable doubt can include doubts about the reliability of the evidence, the witnesses, or the police. If the prosecution was not able to present sufficient evidence, refuse to convict!
The inability to discuss nullification openly encourages hung juries. If you must, hang. Reasonable people may disagree. You have a right to hang – you do not have a right to compromise someone else’s life away. Vote your conscience even if other jurors browbeat you. Your principles are at stake. Principles cannot be compromised – only abandoned. Vote your conscience. Hang with pride. A hung jury sends a message to the prosecutor and judge about the acceptance of the law, and a series of hung juries sends a message to the legislature.
Just Say No!
I know a case in which a prosecutor offered a twenty year sentence as a plea bargain in a user-quantity methamphetamine case. The defendant rejected the offer and took the case to trial. A marijuana activist on the jury refused to convict. The jury hung 11-1. When the case came back, the prosecutor reduced the charge to a misdemeanor with a four month sentence, which was accepted. The defendant is free today – and with no felony conviction – because one independent American stuck to his principles and followed Nancy Reagan’s sage advice – Just Say No! That is the inestimable power of a juror.