Do prospective jurors have to answer questions about what they know about jury nullification?

Several questions have been asked via FIJA email in the last couple of weeks. To be as efficient as possible, I’ll be answering some of them here so that far more than just one person can benefit from the information. Some answers will also be added to our Frequently Asked Questions list on the FIJA website here.

If you have a question, please check the FAQ first as it may already be answered. If you don’t see an answer there, feel free to email it to aji@fija.org. I will do my best to get to as many of them as possible.

Recently, someone wanted to know if prospective jurors have to answer questions about what they know about jury nullification.

I don’t like to talk about what we “can” or “can’t” do or what we “have to” do because those terms are imprecise and mean different things to different people.

If by “have to”, one means are they legally required to, that’s not something I would be the best person to ask. I am not a lawyer, nor does FIJA have any lawyers on staff, nor do we provide legal advice.

But I will answer it here based on the assumption that 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 I have learned from my observations and those of others collected over the many decades FIJA has been around regarding how the court system seems to operate in practice.

Avoid refusing to answer questions

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?

Answer questions truthfully, but neutrally

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. I 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 criminal defense attorneys, jury 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.

Look for indirect questions 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.

Err on the side of getting on the jury

We strongly recommend erring on the side of trying to get on the jury in this scenario 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 will then usually instruct 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 this 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 assume you cannot get on the jury or jump to that conclusion to soon.

More jury selection tips

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? and located on our website here. I 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.

Thank you for educating yourself so that you may successfully participate and deliver just verdicts when called to serve.