Reprinted from www.libertylobby.org, home of The SPOTLIGHT archive
Should We Empower Juries to Evaluate U.S. Laws?
It is time the American people realized their power to sit in judgment of the law. If the law is tyrannical, Americans, through juries, must be free to undo the law. Justice is not served by seating a skewed jury in a court which has been stacked to favor one side, usually the government.
Only by seating conscientious, independent jurors, who are willing to challenge the law at issue in the case, will immoral and unjust laws be struck down.
One way to do this is to reform the way in which lawyers and judges can create biased juries through a process known as voir dire.
Voir dire (pronounced vwar deer), a French term meaning "to speak the truth," consists of questions asked of prospective jurors before the trial by the prosecuting attorney, defense attorney and judge.
The purpose of voir dire questioning is to identify and exclude partisans from serving on the jury. Also, jurors whose questioning reveals bias or prior knowledge of the case are challenged and excluded.
More importantly, voir dire questioning is also used to identify the prospective jurors who are opposed to the law at issue in the case. Unlimited challenges for cause are routinely used to strike them off the jury because they are deemed by the judge to be "biased." Because all dissenters against the law are removed from the panel, the jury is less likely to use its conscience to nullify the law in the case when reaching a verdict.
Every state's voir dire statutes and/or court rules contain similar language which allows the court to strike from the panel all those citizens opposed to the law in the case.
When the jury panel is sifted and molded through relentless voir dire questioning with unlimited challenges for cause, the result is a stacked jury. The jury is no longer randomly selected or a cross-section of the community.
Voir dire results in juries biased in favor of the government's laws. These laws may not even enjoy the support of the community. But voir dire assures that only jurors who support the law will be seated. Only those who support the law are found to be "unbiased" by the voir dire questioning and challenge for cause process.
Washington state's statute, RCW 4.44.170 (2), and the voir dire statutes of other states give the trial judge broad powers to probe the "state of mind" of the juror and to determine who is biased and who is unbiased. Judges routinely deem jurors who are opposed to the law at issue to be "biased" and "partial," while deeming jurors who support it to be "unbiased" and "impartial."
This is a gross distortion of the term "unbiased."
In the context of jury trials, "unbiased" should mean that the juror is not prejudiced against or predisposed towards this particular defendant. It should not mean that the juror holds no opinion about the law or other factors that will impact the trial. Every juror holds countless opinions, and these opinions should not be cause for exclusion from the jury. Many decent, law-abiding citizens are excluded from jury service through the voir dire process just because they hold opinions critical of the law. This is political discrimination and a violation of the First Amendment.
Jurors should be drawn at random from the widest possible pool of community members and, except for the reasons mentioned in the privacy rule below, include all jurors. No probing questions. No jury consultants. No questionnaires. No purging. No sifting. No manipulating. No political discrimination. Just seat the jury.
The Fully Informed Jury Association -- a non-profit legal watchdog group -- proposed a juror privacy rule that would clean up this process by limiting questions of jurors to include only the following:
No other kinds of questions should be allowed to be asked of prospective jurors during jury selection and they should properly refuse to answer any question put to them that is outside of these four listed areas.