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Questions to Consider before Jury Selection

 

Prospective jurors who lie during voir dire—the process of jury selection—can find themselves in serious legal trouble. We do not recommend doing this.

At the same time, we recognize that jury selection has evolved from its originally intended function of seating a fair and impartial jury into an intricate game each side plays to gain an advantage. This generally includes attempts to find and deselect prospective jurors who are fully informed about their right to judge the law as well as the facts in the case before them.

Prior to being questioned during jury selection, prospective jurors are asked to answer yes to something along these lines:

Do you swear or affirm under penalty of perjury that you will truthfully answer all questions about your qualifications to serve as a juror?

This resource is designed to help you as a prospective juror prepare before going to the courthouse to answer questions truthfully but neutrally in a way that is less likely to result in you being excused from the jury.

It would, of course, be impractical to memorize a lengthy list of questions and answers before attending jury duty. However, reviewing these questions and deciding how you might truthfully but neutrally answer them can help you get into a general mindset of answering questions truthfully but neutrally during the actual questioning process.

The following questions are distilled from hours of watching real jury selection in real criminal cases. Some are designed to directly root out independent-minded people or people with certain opinions on especially jury nullification-friendly topics. Other questions are more general, designed to indirectly probe a prospective jurors' thoughts to turn up information the attorney won't actually know to ask about unless the prospective juror clues them in. Be prepared for both kinds of questions by reviewing these examples.

 

General Questions

Let's say you and I met in a social situation completely different than this—a party, for example. What are two or three things you'd like me to know about you when we left the party?

Instead of this:

  • "I am passionate about criminal justice reform and have been organizing protests about abusive police behavior."
  • "I am the precinct captain for the Jefferson County Republican/Democratic/Libertarian/Green/Other Party."

Can you truthfully say:

  • "I don't know. I guess just that I'm a friendly person and you had fun hanging out with me?"
  • "Ha! I don't think there is any way you could leave that party without having seen pictures of my grandkids who I adore."
  • "You will definitely know in the first ten minutes that I am a huge fan of the Chicago Bulls."

 

What recent books and magazines have you read?

Instead of this:

  • "Ibram X. Kendri's book How to Be an Antiracist is on my nightstand."
  • "I subscribe to High Times and Guns and Ammo. Can't wait for them to arrive in the mail!"
  • "I'm loving that 12 Rules book by Jordan B. Peterson!"

Can you truthfully say:

  • "Nothing recently. I don't have a lot of time for reading."
  • "I've been picking up a lot of cooking and travel magazines lately."
  • "I mainly read children's books—bedtime stories to my kids, help them practice reading, that sort of thing."

 

When you watch TV lawyer or crime shows such as Law & Order or Suits, do you root for the prosecution or the defense?

Instead of this:

  • "Definitely the prosecution. These people wouldn't be in court if they hadn't done SOMETHING wrong."
  • "The defense. I always root for the underdog."

Can you truthfully say:

  • "I'm not really big on crime dramas."
  • "Could go either way. It depends on the facts that come out about the case during the show."

 

What are three words or phrases you would use to describe yourself?

Instead of this:

  • "I'm independent, skeptical, and have a heart for justice."

Could you truthfully say:

  • "I'm family-oriented, hard-working, and I'm a gardener."

 

Why do you want to be on this jury?

Instead of this:

  • "I plan to exercise my right to nullify unjust laws in this case."
  • "Without me on this jury, I doubt there would be any fully informed jurors aware of their right to conscientiously acquit even if the law was broken."
  • "I want to be part of this trial to help shape social change in my community."

Can you truthfully say:

  • "The jury system can't work without people being willing to participate."
  • "I, like most people, don't necessarily want to be on a jury, but I am willing to do this because we all need to take our turn doing our civic duty."

 

Questions about Jury Nullification

You understand that you are to follow the law as the judge explains it to you. Correct?

Instead of this:

  • "That is not true. Jurors have the right to judge the law for ourselves in addition to the facts of the case."

Can you truthfully say:

  • "Yes." (Keeping silently in mind that you are answering under the good faith assumption that the judge will explain the law accurately and completely and that your answer might change in the future if it turns out the judge is not acting in good faith or competently in this regard.)
  • "I think that's what the judge told us earlier, wasn't it?"

 

Would you be able to set aside your personal views and apply the law as the judge instructs you? 

If the judge tells you 'this is the law', even if you disagree with it, can you follow the law as he explains it to you?

Would you be able to follow the law as the judge explains it even if you disagreed with it or think it should be changed?

Instead of this:

  • "No. I would never convict someone for ___________________."

Can you truthfully say:

  • "Yes. I can do that." (Note that you are indicating an ability to do so, not making a commitment to do so.)
  • "Isn't that what we are supposed to do?"
  • "Sure. The law is the law."  (Again, keeping silently in mind that jury nullification is also allowed within the law and that you are answering under the good faith assumption that the judge will explain the law accurately and completely and that your answer might change in the future if it turns out the judge is not acting in good faith or competently in this regard.)

 

Questions about Police

Would you be more or less likely to believe the testimony of a police officer or any other law enforcement officer because of their job as compared to other witnesses?

Instead of this:

  • "Cops are liars. I (or my family members or friends) have been treated unfairly by them. I don't trust the police. I would definitely discount their testimony."
  • "I'd probably believe the officer over other witnesses most of the time. Police have more experience and are trained to know what is going on whereas the person walking down the street doesn't."

Can you truthfully say:

  • "I would have to see the testimony of each witness to assess its importance and credibility and to know how much weight I would assign it."

 

Have you interacted with law enforcement? How would you describe your experiences with police?

Instead of this:

  • "There are cops in my neighborhood all the time harassing people for no good reason."

Can you truthfully say:

  • "Like pretty much everyone else, I see them from time to time. I don't have a lot of personal experience with them, though."

 

 

Questions about Specific Issues

Do you support legalization of drugs?

Do you have any strong opinions one way or the other about the use of illegal drugs?

Instead of this:

  • "Legalize drugs. ALL OF THEM."
  • "Drug use is a medical issue, not a criminal one. It should not be handled in the criminal justice system."

Can you truthfully say:

  • "There are arguments to be made on both sides of that debate."
  • "This isn't something that really affects my life on a day-to-day basis."

 

How would you handle the national drug problem?

Instead of this:

  • "Legalize drugs, and release everyone incarcerated for nonviolent drug offenses."

Can you truthfully say:

  • "That's not really my area of expertise."
  • "Ha! That's pretty far above my pay grade! I'd probably call in some experts and see what they think."

 

Are you a member of any groups the advocate for or work against legalization of drugs/firearms rights/criminal justice reform/other issue?

Instead of this:

  • "I'm the president of my local chapter of NORML."
  • "I'm a third generation, card-carrying member of the NRA."
  • "I've been a member of Families Against Mandatory Minimums since my brother got railroaded in court and wound up with a ridiculously long sentence."

Can you truthfully say:

  • "No." (Having resigned your membership in such organizations before reporting for jury duty. You can reinstate them later. Also, keep in mind that just because you have donated to an organization does not necessarily mean you are a "member" of it. The question is asking only about those organizations of which you are a "member".)

 

Marijuana has been legalized for general use in some states. What are your thoughts on that?

Instead of this:

  • "It should be legalized everywhere."
  • "It is shameful that our state isn't on that list. It's a victimless crme, and nobody should be punished for it."

Can you truthfully say:

  • "I think it deserves more research."
  • "I need to think it about more."

 

Questions about the Death Penalty

I would like you to assume that the victims were an innocent people at their home, including children, and the person that killed them did it intentionally and in a purposely cruel and painful manner. Under those circumstances, could you consider the death penalty as a punishment?

Instead of this:

  • "Absolutely not."
  • "There are no circumstances under which I would ever consider the death penalty."
  • "My religious beliefs absolutely preclude me from even considering the death penalty."

Can you truthfully say:

  • "Yes." (Note that you are merely indicating an ability to consider the death penalty, i.e. think about it. You are not making a commitment to impose it under any circumstances.)
  • "I  would weigh all the details of the case before deciding on a punishment."
  • "For me to have a knee-jerk reaction without knowing all the facts would not be fair."