Monday, October 12, 2009

Jury Nullification Is a Moral Obligation

This is my latest post in a series of posts arising from my recent experiences with jury duty for the Los Angeles County Superior Court. In this post, I cover the topic of jury nullification -- .i.e., the legal theory/reality that juries can and do ignore the law and rule the way they want. Other things being equal, I believe in jury nullification, whereas many of the people who mention this topic are people seeking to be excused from jury duty and are hoping to use this as a "get out of jury free card." For the reasons set forth below, I believe that this is exactly the wrong way to look at jury nullification.

When summoned for jury duty, I was prepared to serve on a jury for up to two weeks, at which point I had a non-refundable plane ticket so I could get to one of my regular consulting gigs in another state. As it so happens, my jury duty was limited to waiting at the courthouse to be called to a courtroom and being cut loose at about 2pm when it was clear that no more jury selection was going to take place that day. With California's recently implemented One-Day or One-Trial [pdf] system of jury duty, this is the norm. To wit, most people are able to discharge their obligation for jury duty by calling in to the court for five days or showing up at the courthouse for one day.

In those instances where a potential juror is assigned to a courtroom and/or chosen as a juror, they'll probably be done with their jury duty in five to seven days. In those rare instances where jury duty is expected to last longer than that, the court will probably exclude those people who would suffer a financial hardship. In sum, jury duty under the One-Day or One-Trial system is much less onerous and has dramatically reduced the motivation for potential jurors to seek to be excused.

If you are motivated to get excused from jury duty notwithstanding the fact that you are already at the courthouse and/or in a courtroom, you can probably get yourself excused from serving on a criminal trial by revealing any bias that you have against the prosecution (or the defense); in a civil trial, you can probably get yourself excused by mentioning the concept of jury nullification. Of course, if you really believe in the concept of jury nullification, the time to bring it up/act on it is during jury deliberations.

Far from an excuse, jury nullification is a moral obligation. To wit, it is an effective weapon to be used against The Man when he tries to put someone in jail under the pretext of an unjust law, and it works just as well when the black letter law [pdf] unjustly favors a particular civil litigant. As such, if you truly believe that the law as it is currently being applied by the courts is unjust, then you have a moral obligation to keep your thoughts to yourself until after you have been selected for a particular jury. Then and only then should you make your case to your fellow jurors that the law is unjust, and that it should be ignored.

Even if you are unable to convince your fellow jurors that the law is unjust and/or that it should be ignored, your single vote of "not guilty" will cause a mistrial in a criminal case. As such, if the prosecution wants to put that particular person in jail, they will be forced to prosecute their case against that person all over again. This doesn't necessarily mean that justice will be served in the long run, but for one bright shining moment, your voice will be heard loud and clear.

Some might say that jury nullification is a moral hazard, and that the law should be observed, even when it is unjust. However, the true moral hazard in this situation arises from the fact that too many people who serve on juries defer to the authority of the court or the anonymous authority of the crowd rather than listening to the small, still voice of their own conscience.

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Friday, October 09, 2009

The Folly of Avoiding Jury Duty

As a followup to my earlier posts entitled Post Mortem on Jury Duty and Replacing Mandatory Jury Duty with Voluntary Jury Service, this post covers the trials, tribulations, and concerns of those who hope to avoid jury duty altogether. The nature of this challenge has changed dramatically in California with the implementation of the One-Day or One-Trial [pdf] system of jury duty, so much so that trying to avoid jury duty altogether is usually more trouble than its worth.

Once upon a time, California courts would send out questionnaires to prospective jurors before summoning them for jury duty. Now, when someone's number comes up, a jury summons goes out with a ten-day deadline for responding by phone and a date certain for beginning jury duty. When you respond to this summons over the phone, there are a very limited number of excuses that you can use that the court will still accept, such as a physical disability verified by a medical doctor. However, you are usually given the option to postpone your jury duty for as long as three months. You are also warned that this will be your one and only chance for a postponement, which is totally untrue; what is true is that this will be your one and only chance to request a postponement over the phone. Further postponements must be requested in person, and are routinely granted for up to three additional months at a time, provided your jury duty is completed within one year from the time you were summoned.

There was a time when you could safely ignore the questionnaires that were sent out to prospective jurors, as the courts would snare enough people for jury duty out of the people who actually responded to said questionnaires. And while the jury summons that go out now do not go out by registered or certified mail, there's a pretty good chance that you'll end up being served with an order to show cause if you ignore the initial jury summons. As for calling in to register with the court within ten days, that's probably not all that critical, but I'm hard pressed to imagine what benefit could be obtained by putting off this task absent good cause for doing so.

After receiving a jury summons and calling in to register with the court and/or getting a postponement over the phone, you'll be instructed to call in to the court again the weekend before your jury duty is scheduled to begin. And when you call in again as instructed, you'll be given another call in date or a date certain when you are required to show up at the courthouse for jury duty. If and when you are required to show up at the courthouse, you'll probably be given the opportunity to postpone your jury duty for up to three months, as I alluded to above. However, if you choose this option, you'll be going through this whole process again in three months time. On the other hand, if you just accept the fact that your morning is blown and stick around, there's a good chance that you won't be called to a courtroom, and that you'll be cut loose shortly after lunch with proof that you have fulfilled your legal obligation for jury duty.

In the unlikely event that you are sent to a courtroom for jury selection, it's relatively easy to get yourself removed from consideration as a juror by just being candid about any prejudices you might be harboring. To wit, if you have an inherent distrust of police and prosecutors, just say so. Any prosecutor who has two brain cells in his head will either have you excused for cause or exercise his or her right to strike you peremptorily. Similarly, if you are inclined to believe that everyone who appears in a criminal court is probably guilty of some crime, just say so. Things get a little trickier if you're being considered as a juror in a civil case - i.e., a court case where someone is suing someone else rather than one where someone is being prosecuted for allegedly committing a crime. In these instances, your best bet for being excused from consideration is to mention jury nullification. This makes you a wildcard that one or both attorneys in the case will want to avoid, if not the judge.

In sum, trying to get out of jury duty altogether is simple folly. The best that you can hope for is to minimize your jury duty to no more than five days on call or one day at the courthouse as a potential juror. And if your employer pays your salary or wages while you're serving jury duty, make the most of it. When you're required to show up at the courthouse, bring a good book or your laptop, and take good notes so you can blog about your experiences later.

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