Do I have to answer questions about jury nullification?
If by “have to”, one means are they legally required to, that’s not something FIJA would be the best source to ask. FIJA does not have any lawyers on staff, nor do we provide legal advice.
But if it is asked from the point of view of someone who would like to serve on a jury as a fully informed juror, there is quite a bit we can share regarding how the court system seems to operate in practice from observations collected over the many decades FIJA has been around.
If you want to serve on a jury, the best way to do that is to avoid standing out as someone who might be an independent thinker, a lone wolf, someone who is not easily led, etc. Refusing to answer certain questions will almost certainly raise a red flag in either of the attorneys’ minds or the judge’s mind about whether they want you on a jury.
That especially applies to questions about jury nullification. Refusing to answer questions about jury nullification is basically the same as announcing to the room that you are a fully informed prospective juror.
Understandably, those who are fully informed may be concerned that if they disclose their knowledge about jury nullification they will be deselected and not get a chance to serve on the jury. When backed into this sort of damned if you do, damned if you don’t corner, what can a fully informed juror do to best serve justice?
To help you navigate the process of questioning prospective jurors, FIJA hosts a resource on our website which we are frequently reviewing and updating whenever possible entitled Questions to Consider Before Jury Selection. We recommend you check this out before you go to the courthouse in order to prepare to answer questions as best you can.
In this resource, we help you think about how you might answer questions truthfully, yet more neutrally than you might first be inclined to answer them. Providing truthful but neutral answers rather than loudly airing your opinions or refusing to answer questions altogether will help you stay off the radar of those choosing the jury as someone to eliminate.
This resource is based on real life scenarios, including what we have learned from conversations with criminal defense attorneys who practice in the courtroom, jury selection consultants, and from watching many jury selections in real cases that were streamed online during the COVID-19 pandemic when courthouse access was limited.
There is a section specifically geared toward questions aimed at rooting out those who know about jury nullification. You may notice, however, that it includes only indirect questions.
That is because almost never will an attorney ask directly during jury selection anything along the lines of “Do you know what jury nullification is?” or “What are your thoughts about jury nullification?”. Typically they do not want to inadvertently inform other jurors about this who do not yet know about it.
Instead, they will ask indirectly using language similar to the sample questions we provide. Jurors who seem neutral or even slightly confused about why they might be asking that are far more likely to pass this test than those who sit up, raise an eyebrow, and launch into an argument with the attorney about the validity of jury nullification in hopes of informing the other prospective jurors this close to trial.
Please do not assume that because you are fully informed about jury nullification that you cannot get on the jury!
We strongly recommend erring on the side of trying to get on the jury, perhaps even longer than you think you should, rather than trying to inform other jurors. If you try to inform others, you will most likely be quickly cut off and ushered out of the room before you can convey enough useful information to educate others. The judge often then instructs the other prospective jurors to disregard what you said and may even lie to them saying that it is misinformation.
That means that if you take the route of speaking up and getting removed, most likely there will be no fully informed juror on that person’s jury to stand up for them if needed for a just verdict. So please do not be too hasty in concluding that you cannot get on the jury.
You can find these and other useful tips for getting on a jury and serving as a fully informed juror in our guide to jury duty for fully informed jurors entitled Called for Jury Duty?. We encourage you to review this as soon as you receive a summons to jury duty as it is designed to walk you through the entire process from the beginning.
