But what about questions which you feel invade your privacy, or simply embarrass you? Should you refuse to answer? Or should you spill your guts at every question? Should you tell the judge and lawyers only what they want to hear? Or what you want them to hear? Or...?
And what about the oath you'll be asked to take--to "follow the law as given by the court, even if you disagree with it?" Should you cross your fingers while swearing to abide...? No one can supply answers for anyone else to moral questions like these, so we won't try. Nor does FIJA offer legal advice, because we're not lawyers. But--it should be abundantly clear--we believe fully informed decisions are better than choices made in ignorance, so we are happy to supply some considerations which may be of valueto you when you receive notice to show up for jury duty, along with some tips to help you understand your role as a juror:
(1) Your Fourth Amendment right to privacy and your Fifth Amendment right to remain silent apply--even during the jury selection process, or "voir dire", where rough questions are often asked. (For example: "Have you ever been raped, madam?") Refusal to answer may cost you an opportunity to serve, so you have a moral choice to make if you believe that justice in this case could depend upon you being empaneled, or you feel that you have a duty or responsibility to the community to serve on this jury which outweighs having to make some difficult choices, including choices which may embarrass or inconvenience you, or which will entail invasion of your privacy.
(2) The judge is granted no authority by the Constitution or by any Supreme Court ruling, by common law or by any traditional American legal doctrine, to require the jury to take an oath to follow the law as he explains it or, for that matter, to "instruct" the jury to do anything. Judges may explain to juries what the law is, and jurors may agree to accept that explanation of the law, and to apply it accordingly. But no judge can force a juror to accept and use the law to convict someone against his or her conscience.
(3) You cannot be punished for voting your conscience. Judges, and other jurors, often rely upon guilt to persuade hold-out jurors to abandon even a conscientious stand against the majority "...in order to avoid a hung jury and mistrial, and all the extra money that will cost the taxpayers..." But no one, not even the judge, has the power to make you abandon your sense of right and wrong, even when it means you must refuse to "go along with the majority", or fail to follow whatever oaths you were told you "must" take before you could be empaneled. Besides...
(4) Hung juries are OKAY. If voting your conscience should lead to a hung jury, not to worry. There is no requirement that a unanimous decision be reached. And the jury you hang may be significant as one of a series of hung juries sending messages to the legislature that the law you're working with has problems, and it's time for a change.
(5) Understanding the context in which an illegal act is committed is essential to deciding whether the defendant acted rightly or wrongly. Strict application of the law may produce a guilty verdict, but your real job is justice. Once you and your fellow jurors decide that strict application of the law to the facts has indeed proven that the law was violated "beyond a reasonable doubt",then the hard part begins: doing justice may require a careful look at the context of the crime in order to decide on the verdict (and, where juries do the sentencing after finding someone guilty, to determine an appropriate sentence).
(6) During deliberations, it is always appropriate to discuss whether the prosecution may be politically motivated. Much of today's "crime wave" is made up of victimless crimes--crimes against the government, otherwise known as "political crimes". And it does happen that individuals are singled out for prosecution as a way of harassing them for some reason or another. If your feeling is that the law may be well-intended, but that applying it could unduly empower the government or have some other dangerous consequence, just remember that "juries can acquit for any reason, or no reason at all."
(7) When you are asked whether you will follow the law, consider that the Constitution is the highest law of the land, and any other laws which violate it are null and void (Madison v. Marbury, 5 US (2 Cranch) 137, 174, 176 (1803)). As jurors you may decide that you have an obligation to follow and enforce the Constitution. And it is always appropriate to ask yourself if the case at hand is likely to involve important Constitutional questions, or a defense of the Bill of Rights. Should the judge fail to discuss the Constitution or Bill of Rights as they may relate to the case before you, you'll have to rely on your own knowledge.
(8) Politically, you can do more good as a trial juror than in practically any other way as a citizen: you can be part of a feedback loop of community opinion on the law if the case you hear involves a questionable law, a law which violates your sense of justice or your conscience. When else will your opinion be taken so seriously, or have so much good impact on the rules we live by? So far in America, a defendant is still presumed innocent until proven guilty "beyond a reasonable doubt." You'll do fine as juror as long as you keep in mind that "innocent" and "guilty" are moral judgments for you to make, with the facts of the case and the law as your guides. Hang onto the fact that you, the jurors, are the most powerful and important people involved in the case, and finally that it is your personal responsibility to use your own vote to prevent injustice if it comes down to that. You are nobody's rubber stamp...at least, you'd better not be, because you--not the judge, nor the prosecutor, nor the defense team, nor the bailiff nor the jailer nor the janitor--you stand to receive the credit or blame for your decision. You signed on as "conscience of the community", and while you cannot be punished for doing a poor job, a job well done can be of inestimable personal, social and political value. You have a lot of power as a juror, and we urge you to se it wisely.