Questions Asked to Potential Jurors

[johnthomas]

I ended up on a jury for robbery, assault with a deadly weapon, attempted murder.
As I am a Violent Crime Victim, I was sure I would be thrown off the jury when the questions started.
None of the jurors were asked if they were a VCV.
After the attornies were done with their questions, the Judge then asked all jurors to raise their hands if they were a VCV.
I was very surprised, over half the jurors raised ther hands.
We were then asked if we could judge the case on its own facts, without prejudice.
Everyone said they could, and we all stayed on the jury.

The courts are desperate for quality jurors.

Did you convict? Kind of like paying back the person that caused you grief by proxy.

[Theseus]

I don't find that to be true at all. The People (prosecutor) bears the burden in a criminal case. If they don't prove their case beyond a reasonable doubt, the defense has to do nothing. While every case is different, I generally want people on the jury who can analyze the People's evidence and see the holes and come to the conclusion that there are reasonable explanations, even if unlikely, that the prosecutor has not eliminated in their mind and thus "not guilty." I only need one of these thinking people on my jury to hang it up. The more the better.

I wish it were that true. I have a feeling that, as in my case, that "well, the jury obviously found you guilty, so there must have been enough evidence".

The burden is no longer reasonable doubt. At least not in my experience. I would almost like to see the statistics, but I am willing to wager that most juries convict.

[fiddletown]

... I would almost like to see the statistics, but I am willing to wager that most juries convict.

I'm pretty sure that in criminal cases most juries do convict, simply because (1) most prosecutors know what they are doing; and (2) a competent prosecutor isn't going to take a case to trial unless he believes that he has a good chance of getting a conviction. Most juries probably convict in criminal cases not because of vagaries of juries, but rather because of front end case selection.

[snobord99]

I'm pretty sure that in criminal cases most juries do convict, simply because (1) most prosecutors know what they are doing; and (2) a competent prosecutor isn't going to take a case to trial unless he believes that he has a good chance of getting a conviction. Most juries probably convict in criminal cases not because of vagaries of juries, but rather because of front end case selection.

Beat me to it.

[GrizzlyGuy]

I wish it were that true. I have a feeling that, as in my case, that "well, the jury obviously found you guilty, so there must have been enough evidence".

The burden is no longer reasonable doubt. At least not in my experience. I would almost like to see the statistics, but I am willing to wager that most juries convict.

Your case is one of the best examples I can think of that demonstrate how important it is for jurors to retain and sometimes exercise their right to judge the law, as our founders and framers intended, and not limit themselves to the facts of the case, as judges would like.

Your judge chose to redefine the simple English term "private property" in the way most unfavorable to you, without precedence for doing so in that particular statute. At least one of the jurors should have asked (during deliberations) 'hey guys, would we still convict if we used our plain understanding of that term or redefined it in the way most favorable to the defendant?'. If anyone answers no, then you should have walked. You would have walked had I been on your jury.

[snobord99]

Your case is one of the best examples I can think of that demonstrate how important it is for jurors to retain and sometimes exercise their right to judge the law, as our founders and framers intended, and not limit themselves to the facts of the case, as judges would like.

The problem is, not everyone agrees on what the founders and framers intended. I mean, what if you end up with 12 jurors who believe that 2A was only meant for militia or military and decide that he is guilty because he has a firearm and he's not militia or military regardless of whether the law says he's allowed to have the firearm? Forget the fact that it may very well be overturned on appeal; how would you like to even have to go to appeal in the first place because 12 antis decided jury nullification was the way to go?

Your judge chose to redefine the simple English term "private property" in the way most unfavorable to you, without precedence for doing so in that particular statute. At least one of the jurors should have asked (during deliberations) 'hey guys, would we still convict if we used our plain understanding of that term or redefined it in the way most favorable to the defendant?'. If anyone answers no, then you should have walked. You would have walked had I been on your jury.

I don't agree there was no precedent, but that's neither here nor there. I'm pretty sure that this issue never even made it to the jury. Even if they would have asked "what does private property mean," they didn't because they were never told that it was an issue. Also, it's never been the case that a term has to be defined in a way most favorable to the defendant at trial.

[fiddletown]

Your case is one of the best examples I can think of that demonstrate how important it is for jurors to retain and sometimes exercise their right to judge the law,...

And of course, as a practical matter they do, especially in the case of a verdict of acquittal in a criminal trial. In a criminal trial a verdict of acquittal is inviolable -- it can't be touched by the judge nor can it be appealed. So a jury can effectively ignore the judge's instructions and acquit someone who is guilty under the evidence and the law.

Of course, a judge will not instruct a jury on jury nullification, nor will a judge allow the defense lawyer to argue to the jury for jury nullification. So it's something the jury will need to think up on its own.

Which may be just as well. We've certainly seen perversion of jury nullification -- at times when no White jury would convict a White man of a crime against a Black (or Native American or Asian or Hispanic) no matter what the law or the facts were.

So maybe jury nullification is best reserved for situations in which all members of the jury would agree on their own initiative that applying the law as instructed by the judge would result in a truly monstrous injustice -- so monstrous that contemplation of it would overcome any resistance the jurors might have to ignoring the judges instructions.

...as our founders and framers intended, and not limit themselves to the facts of the case, as judges would like....

And do you have any evidence of our founder's intent in that regard? After all, many of the Founding Fathers were lawyers, well schooled in the Common Law, as is the foundation of our legal system and in which the jury is the trier of fact.

[dantodd]

The only case of jury nullification which I am aware of is a case in which a friend of mine was the primary investigator. It was a mail bombing case in either TN or KY. In post-trial interviews the jurors said that the prosecution had proved their case beyond a reasonable doubt but they didn't convict the bomber because the victim was gay and deserved it.

[GrizzlyGuy]

The problem is, not everyone agrees on what the founders and framers intended. I mean, what if you end up with 12 jurors who believe that 2A was only meant for militia or military and decide that he is guilty because he has a firearm and he's not militia or military regardless of whether the law says he's allowed to have the firearm? Forget the fact that it may very well be overturned on appeal; how would you like to even have to go to appeal in the first place because 12 antis decided jury nullification was the way to go?

That's the flip-side of the coin and certainly possible, but I would hope that the citizenry would choose to exercise their right to judge the law only in ways that are favorable to a defendant. If the government wants to deprive a person of life, liberty or property, then the benefit of the doubt needs to go to the defendant.

I don't agree there was no precedent, but that's neither here nor there. I'm pretty sure that this issue never even made it to the jury. Even if they would have asked "what does private property mean," they didn't because they were never told that it was an issue. Also, it's never been the case that a term has to be defined in a way most favorable to the defendant at trial.

I meant no precedent specifically related to the GFSZ law. The judge seems to have borrowed the concept of publicly accessible private property from People v. Overturf, People v. Strider and other cases that did not specifically relate to our 626.9 GFSZ law that Theseus was convicted of violating.

Of course, a judge will not instruct a jury on jury nullification, nor will a judge allow the defense lawyer to argue to the jury for jury nullification. So it's something the jury will need to think up on its own.

That's right, and that's why organizations like the Fully Informed Jury Association exist. Keep in mind that only 1 out of the 12 jurors needs to know their rights, the other 11 can be taught or influenced by that one person. If done properly with care, nullification can be accomplished without anyone on the jury actually knowing that the process is going on.

For example, if I wanted to nullify and didn't think I had many fellow libertarians on the jury with me, I'd lead the rest of them down a path of critical analysis and increased scrutiny of the government's evidence. They would (hopefully) end up believing that the government simply hadn't met its burden of proof. I can hang the jury all by myself, but I'd be playing for a full acquittal.

So maybe jury nullification is best reserved for situations in which all members of the jury would agree on their own initiative that applying the law as instructed by the judge would result in a truly monstrous injustice -- so monstrous that contemplation of it would overcome any resistance the jurors might have to ignoring the judges instructions.

See above, denying a person of life, liberty or property when he made a good faith attempt to abide by the actual language and plain meaning of the law seems like a monstrous injustice to me.

And do you have any evidence of our founder's intent in that regard? After all, many of the Founding Fathers were lawyers, well schooled in the Common Law, as is the foundation of our legal system and in which the jury is the trier of fact.

Yes, lots. Here are a few quotes (from here), and if you Google a bit you'll find a lot more evidence:

It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court. - John Adams, 1771

.....it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. - Thomas Jefferson, "Notes on Virginia," 1782

Jurors should acquit, even against the judge's instruction...if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong. - Alexander Hamilton, 1804

It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.....you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy. - Chief Justice John Jay, Georgia v. Brailsford, 1794

[fiddletown]

...If the government wants to deprive a person of life, liberty or property, then the benefit of the doubt needs to go to the defendant....

Which is why, in the ancient tradition of the Common Law, the prosecution has the burden of proving its case beyond a reasonable doubt.

...I meant no precedent specifically related to the GFSZ law. The judge seems to have borrowed the concept of publicly accessible private property from People v. Overturf, People v. Strider and other cases that did not specifically relate to our 626.9 GFSZ law that Theseus was convicted of violating....

But that is common and may be entirely proper. Why should a word or concept in connection with one statute have a meaning different from that in connection with another statute or court decision? And if the Legislature intended a common word or concept to be applied in a unique way in connection with a particular statute, why wasn't that specified?

In any case, the court of appeals will decide.

...denying a person of life, liberty or property when he made a good faith attempt to abide by the actual language and plain meaning of the law seems like a monstrous injustice to me....

But I guess not to the jury in Theseus' case. And isn't that decision properly the province of the jury under your model?

Did that jury return a guilty verdict because it conscientiously felt constrained to in reliance on the judge's instructions as to the law (which may or may not have been erroneous -- a matter to be decided by the court of appeals), or did the jury find him guilty because it didn't like what he did and felt he ought to be punished for it -- no matter what the law or facts may be?

...Yes, lots. Here are a few quotes ...

Whether those quotes reflect intent or a recognition of reality is in the eye of the beholder.

[GrizzlyGuy]

Which is why, in the ancient tradition of the Common Law, the prosecution has the burden of proving its case beyond a reasonable doubt.

If the law itself is unreasonable or unclear, it doesn't matter whether the prosecution proves its case or not. To truly provide the defendant with the benefit of the doubt, the jury may need to assess the reasonableness and clarity of that law, and how the judge is choosing to interpret and describe the law to the jury.

But that is common and may be entirely proper. Why should a word or concept in connection with one statute have a meaning different from that in connection with another statute or court decision? And if the Legislature intended a common word or concept to be applied in a unique way in connection with a particular statute, why wasn't that specified?

It is common but not entirely proper because the judiciary sometimes overrides (rather than properly interpreting) legislative intent. The legislature need not, and did not, specify a particular meaning for the plain language term "private property". If they meant it to mean "private property not accessible to the general public" they could have said so in the statute. The absence of special definition or reference to usage in some other statute would lead a reasonable lay person (e.g., the defendant) to conclude that the words mean exactly what they say.

But I guess not to the jury in Theseus' case. And isn't that decision properly the province of the jury under your model?

Did that jury return a guilty verdict because it conscientiously felt constrained to in reliance on the judge's instructions as to the law (which may or may not have been erroneous -- a matter to be decided by the court of appeals), or did the jury find him guilty because it didn't like what he did and felt he ought to be punished for it -- no matter what the law or facts may be?

I wasn't on the jury or privy to their deliberations so I have no idea why they reached the verdict they did. However, I can reasonably deduce that the judge's actions and instructions related to "private property" played no small part. I can also surmise that there were no fellow radical libertarians on that jury who would have researched the law on their own during the evening, and generally taken all of the judge's various instructions and admonishments as suggestions.

Whether those quotes reflect intent or a recognition of reality is in the eye of the beholder.

I think intent is pretty obvious, here is one more quote:

Jefferson was a pretty big believer in sovereign citizens acting to hold their government to the principles of it's constitution. Jefferson was also one of the guys who wrote the Kentucky and Virginia Resolutions which advocated outright nullification of the Alien and Sedition Acts, not just jury nullification after some unfortunate individual was charged with violating them. The other author of those resolutions was Madison, the father of our Bill of Rights.

I imagine it really bugs you trial attorneys to know that you aren't in charge, and the judge isn't even in charge. We the sovereign citizens and jury members are in charge and there is nothing that anyone can do to change that.

[WReyth]

I am an attorney and I have done about 12 jury trials. In a general sense, attorneys want jurors they can persuade, and the more educated or analytical a juror is, the belief is they are more likely to come to their own conclusion rather than the one we want them to accept. One of the attorneys that trained me in jury selection always sought to excuse engineers and asians. He believed they were more analytical.

Hopefully this isn't wandering too far off topic, but one thing about jury selection that I don't understand: if you are selected, can the outcome of the trial be used against you later?

When I went through selection process a few years ago, the judge noted that in our group there were many people with engineering or technical backgrounds, and if we were able to refrain from our own assessments and stick to the facts presented. It got me thinking: If I did so, disregarding contrary information that I have access to personally, could my participation in the verdict be used against me later?

For example, if the case was concerning IT security and I was systems administrator, and there was testimony/evidence that I know was misleading or false. The opposing attorney does not bring it up for whatever reason, and I am compelled to ignore what I know. Fast forward and now I'm under investigation or on trial. Could someone go back to that trial and use that to state that I'm incompetent?

[snobord99]

It is common but not entirely proper because the judiciary sometimes overrides (rather than properly interpreting) legislative intent. The legislature need not, and did not, specify a particular meaning for the plain language term "private property". If they meant it to mean "private property not accessible to the general public" they could have said so in the statute. The absence of special definition or reference to usage in some other statute would lead a reasonable lay person (e.g., the defendant) to conclude that the words mean exactly what they say.

So I guess it's entirely proper to leave it up to you to determine what's a proper interpretation and what's an improper overriding?

I assume the fact that the legislative history of the statute says "[w]ithin 1,000 feet of a school, as defined above, means any public area or business establishment where minors are legally permitted to conduct business" won't convince you that, maybe, just maybe, the court got it right?

The fact that you think "private property" in this case needed to read "private property not accessible to the general public" kind of indicates that you agree that there's more than one possible interpretation to "private property." All you're saying is that they need to clarify which interpretation they meant.

[snobord99]

That's the flip-side of the coin and certainly possible, but I would hope that the citizenry would choose to exercise their right to judge the law only in ways that are favorable to a defendant. If the government wants to deprive a person of life, liberty or property, then the benefit of the doubt needs to go to the defendant.

Is that "hope" enough that you'd be happy with leaving your freedom in the hands of 12 San Franciscans who have no problem with jury nullification over a gun charge?

I meant no precedent specifically related to the GFSZ law. The judge seems to have borrowed the concept of publicly accessible private property from People v. Overturf, People v. Strider and other cases that did not specifically relate to our 626.9 GFSZ law that Theseus was convicted of violating.

Again, I think the precedent was there. I just don't think you like the way the precedent was used.

For example, if I wanted to nullify and didn't think I had many fellow libertarians on the jury with me, I'd lead the rest of them down a path of critical analysis and increased scrutiny of the government's evidence. They would (hopefully) end up believing that the government simply hadn't met its burden of proof. I can hang the jury all by myself, but I'd be playing for a full acquittal.

You know that getting the other jurors to carefully scrutinize the evidence isn't jury nullification right?

[fiddletown]

If the law itself is unreasonable or unclear, it doesn't matter whether the prosecution proves its case or not. To truly provide the defendant with the benefit of the doubt, the jury may need to assess the reasonableness and clarity of that law, and how the judge is choosing to interpret and describe the law to the jury....

Maybe and maybe not, and that's the rub.

Reasonableness is often in the eye of the beholder. Whether a particular person sees a law, or the interpretation of the law, as reasonable will be strongly influenced by his education, social standing, cultural background, values, etc. Since the members of a jury won't necessarily share those attributes with each other, the members of a jury are likely to bring varied perspectives to the question of whether a law is or is not reasonable.

Now if all the members of the jury agree to not follow the law and acquit someone who has actually committed the acts for which he is on trial, it is most likely that the application of the law in his case would truly produce a grossly unacceptable result. In other words, the application of the law would be unreasonable in the clearest possible terms when considered from a broad range of values and perspectives. But on the other hand, there may be the situations in which from a shared cultural perspective members of a jury agree that it would be plainly unjust for a [insert race/political party/religion/educated/uneducated, etc.] man to be punished for murdering a [insert another race/political party/religion/uneducated/educated, etc.] man.

And encouraging a jury to independently decide whether or not a law is reasonable doesn't necessarily give the defendant the benefit of the doubt. For example, let's imagine that a jury in a self defense case consists largely of people who believe that it's not right for anyone to use force and injure another, even in self defense. And yes, such attitudes exist, and among mainstream, apparently normal, ordinary, or even prominent, people. For one discussion of this phenomenon, see Armed by Gary Kleck and Don Kates (Prometheus Books, 2001), pages 116 - 121. (And of course, the jury selection process should help weed such folks out, but some people don't much like the jury selection process.)

In any case, were such persons, while on a jury, to consider the reasonableness of the laws relating to the justified use of force in self defense from their unique cultural and values perspective, they might well either ignore the right to self defense or at least hold the defendant to an especially high standard. That's hardly giving the defendant the benefit of the doubt.

So while you might

...hope that the citizenry would choose to exercise their right to judge the law only in ways that are favorable to a defendant...

they in fact might not.

...It is common but not entirely proper because the judiciary sometimes overrides (rather than properly interpreting) legislative intent.....

And of course, that is the question for the court of appeals.

...I wasn't on the jury or privy to their deliberations so I have no idea why they reached the verdict they did...

However, since they did reach a verdict of guilty, it may be inferred that they didn't see anything unreasonable or grossly unjust about that result.

...I can also surmise that there were no fellow radical libertarians on that jury who would have researched the law on their own during the evening, and generally taken all of the judge's various instructions and admonishments as suggestions....

And I have no reason to surmise that such radical libertarian's conclusion regarding the law would be correct, while the judge's was not. And while the judge's conclusion was made stated publicly, recorded and is subject to scrutiny by the court of appeals, the radical libertarian's conclusion was stated behind closed doors and not subject to independent examination.

... imagine it really bugs you trial attorneys to know that you aren't in charge, and the judge isn't even in charge....

Actually, no, not at all. Good lawyers are strongly committed to the process. We play our roles, but the end is always the confluences of various forces and considerations. I must zealously and to the best of my ability represent the interests of my client, even though he's unpopular, I don't personally agree with him, or perhaps like him much, and his prospects are dim -- nonetheless, I must work hard and diligently in his interest. I submit that one doesn't do that unless he has a deep and abiding commitment to the process. And one doesn't do that and remain sane if he feels he must control the outcome.