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Whoever remains from the panel is a
member of the jury (plus alternates in
case of casualties among the jurors).
This remnant is composed of persons
who are the least objectionable and least
knowledgeable about the event that is
the subject of the case. It is believed that
they are the best possible jury for the
particular case. F. Lee Bailey was pleased
to find a chemist on the jury panel for
a poisoning case because he could
understand the complicated evidence.
However, the law does not allow such an
expert jury, and the prosecution swiftly
excluded the chemist.
The judge will caution the jurors not to
speak to the lawyers, parties or witnesses. 9
This is to avoid the appearance of
improper communication, which leads
to suspicion and mistrial, and twelve
other people being very angry.
Some jurisdictions allow jurors to
take notes, but rarely are they allowed
to ask questions. Where questions
are grudgingly allowed, the judge and
lawyers must vet them before they are
permitted to be asked.
On occasion, a judge takes the speedy
trial rule to extremes and disposes of the
scheduled breaks. In one such instance
a juror raised his hand and asked for a
break, which was immediately given.
This juror was the hero of the courtroom.
Songs were composed in his honor,
epic poems written, and children were
conceived specifically so they could be
named after him. 10
Juries are rarely sequestered. It is
expensive and a burden to all. Bailiffs
are solicitous of their jurors and can
often ease the inconvenience of the
experience.
Some jurors have preconceived ideas
of what the law says. They are often
wrong. One juror proclaimed that a
case was not self defense because the
defendant fired on advancing armed
thugs. She claimed that he could not do
so unless they fired first. Giving thugs
one free shot is not the law. The juror’s
confidence led the jury to convict. In
another such case, a juror proclaimed
the defendant’s tactics to be “stupid” and
therefore illegal. 11 But jury instructions
are provided to define what is or is not
legal, and these definitions override
what is in the dictionary or the Bible.
Jurors may take all evidence into the
jury room. Some jurisdictions allow
testimony to be read back to the jury.
This may not be practical. In one case,
a juror composed a list of testimony to
be read back which promised to turn
a ten-day trial into a career. 12 Others
convinced her to rely on memory.
The most important things the jury
takes into deliberations are experience
and common sense. In one case the
victim testified that she had been raped
while standing. One juror declared
that it was impossible to have sex
standing up. The remainder of the jury
enlightened him. 13
After hearing strong evidence of selfdefense
one juror told his fellows not to
bother him until they were ready to vote
not guilty. This is a problem because
jurors are required to participate in
deliberations. An uncommunicative
juror could be removed from the jury,
forcing a mistrial. 14
Jurors are forbidden from undertaking
independent investigation. In a
British murder trial four jurors held
a séance to contact the victims, who
named the defendant as their killer.
The conviction was overturned on
the grounds, among others, that the
ghosts had not been cross-examined. 15
Jurors are told that they must follow
the jury instructions. They are supposed
to follow the jury instructions, but juries
have a practical power to nullify the law.
A Wisconsin jury, declaring that their
time had been wasted, nullified a firearm
possession case on the grounds that
the law could not have been intended
to apply to the inoffensive retarded
defendant. 16 Nullification is wrongly
presented as a guaranteed acquittal
for defendants claiming self defense.
Defendants have been convicted after
acting in self defense, but the danger is
that once juries are told they can ignore
the law, they may ignore the self defense
law as well.
Only in the United States does the
accused have a constitutional right
to a trial by jury. Our founders, many
of them lawyers, believed that justice
was too important to be left to lawyers.
Lawyers are taught to find law in books
and computers, but not justice. The
founders of this nation believed that
justice is found in the common sense
of twelve unbiased people chosen at
random.
Militias come in all sorts. n
[ Kevin L. Jamison is an attorney in the
Kansas City Missouri area concentrating
in the area of weapons and self-defense.
Please send questions to Kevin L. Jamison
2614 NE 56 th Ter Gladstone Missouri
64119-2311 KLJamisonLaw@earthlink.
net. Individual answers are not usually
possible but may be addressed in future
columns. ]
This information is for legal information
purposes and does not constitute legal
advice. For specific questions you
should consult a qualified attorney.
1. Article I Section 22(b).
2. Duren v. Missouri, 99 S.Ct. 664 (1979).
3. Unger, Union Station Massacre, Andrews McMeel Publishing Kansas City MO
1997 at 202.
4. Refusing to register to vote does not get one out of jury duty. It may get
people elected who pass laws concerning jury duty.
5. Liddy, Will, St. Martin’s Press 1981 at 385.
6. I knew him.
7. Burnett, A Trial by Jury, Alfred A Knof pub. NY 2001 at 112. This book should
be read by all lawyers doing criminal trials (not right now—it will keep until
they finish the magazine).
8. Email in author’s possession.
9. Despite this instruction I frequently have jurors speak to my client or me
during the trial, which requires me to report the contact to the judge.
10. Not just then, but later on.
11. “Enter the Jury Room” CBS Reports Transcript: Burrells Box 7 Livingston NJ
07039. Video 1-800-934-NEWS. Videos of jury deliberations are rare and
not done without jury approval.
12. Burnett, A Trial by Jury, op cit at 105.
13. And perhaps opened a new world for him.
14. “Judge outs ‘failing’ juror from Reginald Denny case” Kansas City Star 12
October, 1993 at A-3 com 4.
15. Weird News, Kansas City Star August 17, 1994 at F-1 clm 6. R. v Young,
[1995] QB 324.
16. Video, Inside the Jury Room, Frontline April 8, 1986.
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