A Guide to Jury Duty
October 21st, 2014 // 2:15 pm @ Oliver DeMille
“I’m going to serve on jury duty,” my daughter told me. “Any thoughts?”
A Problem and A Solution
This will be short. Share it with anyone who might serve on jury duty. Save it to reread whenever you get called to jury duty. It is powerful information about freedom and being a leader in our society.
First, the American framers made juries a central part of the judicial system because they didn’t trust anyone else to keep the government in check.
Think about it. Nations with no juries still have judges, lawyers, and court cases. They arrive at verdicts and mete out punishments. But they do it all with two entities: the government and the accused.
The founders wanted something different. They didn’t trust government. “Power corrupts, and absolute power corrupts absolutely,” as Lord Acton put it.
The founders had seen what the British government did with its judges and courts. They had read about judicial abuses in Rome, Greece, Israel, the German principalities, and nations down through history. They knew that in almost all judicial systems, throughout history and around the globe, an accused person had very little chance for justice.
Their solution? Juries.
Specifically, juries made up of regular citizens like the accused, who would naturally be on the side of the accused “regular” citizen if the government tried anything pushy, or at the very least not automatically choose the side of government.
They established the jury system for one reason: to keep the government in check, to keep the government from being abusive, to keep the government from having too much power.
Checks and Responsibilities
Juries, the founders felt, were the last line of defense for a person falsely accused (or rightly accused, with extenuating circumstances), or even just to keep the government from having too much power in too many ways.
If juries don’t let the government get away with too much power, the whole nation will be more free. This was the reason the framers gave us the jury system.
Second, jurors do have two roles:
- Keep the government in check
- Provide a just determination of guilt or innocence
Both of these are important, but #1 is more important than #2. Indeed, keeping the government in check is the reason the founders established the jury system.
Sadly, most modern jurors believe that their main (and only) purpose is #2, to determine guilt or innocence.
The truth is that jurors generally do #2 better than judges, if for no other reason than that they aren’t jaded by facing criminals and lies day after day. They typically have a more healthy, balanced view of people.
Jurors should of course do a good job at #2, and in many cases this won’t conflict with #1. But if it ever does, good jurors choose #1 above #2.
Why? Because it’s more important to keep the government (with its massive resources and power) from abusing power than from stopping one accused person. That one person may hurt people, badly, and deserve real justice – it’s true. But an abusive government will hurt many, many more people—and hurt them a lot worse.
Founders and Authorities
To be a good juror, keep your eye on #1. Keep the government in check. This is your first purpose. Your first duty. Clearly #2 is important, but it is secondary to #1. If possible, do both; but always do #1.
By the way, this is a key message of the great classical movie 12 Angry Men with Henry Fonda. Every prospective juror who wants to prepare for serving should watch and consider this movie. Some of the lessons:
- Keep the government in check—with the use of your vote about innocence and guilt.
- Think on your own—don’t be a victim of “groupthink” or peer pressure from members of the jury. Be polite, respectful, participative, and friendly—and don’t be swayed by anything except your own careful thinking. Listen, analyze, and think on our own.
- As a juror you are using real power. You are using force. Your vote will impact the accused just like a gun with bullets would. Be careful, and wise. Use this power reverently, and with a cautious eye on keeping government power from pushing through things that aren’t truly proven.
- Don’t see the judge or lawyers as the teachers or experts and the jurors as the students or employees. This isn’t how the founders set up the jury system, even though many people are in the habit of seeing it this way. Instead, get it right by seeing the judge, lawyers and witnesses as students or employees putting on presentations and the jurors as the experts or bosses who learn from the others but make the final decisions.
- Remember that in our current system, victims and their families aren’t allowed to directly seek justice through fights, duals, or retaliation. You are the hand of their justice, so if a defendant is guilty, it is essential to respond in a just way.
- Be polite and calm, even when standing up for your view.
- Do your best to see that justice is done, and that the government is kept in check. To reiterate: If you must choose between the two, keeping the government (with its immense power and resources) in check is more important than keeping one defendant in check.
- How to deal with the judge: Treat him with respect and obey whatever he says, except when he tells you how to think. Remember, judges are a major part of the government the founders wanted juries to protect against. If he tells you how to think, at all, use your own brain. The founders put you on the jury, not the judge.
Treat this prospect with respect. The founders gave you the jury power because they trusted you more than anyone else—including any government official or judge—to keep the government in check, seek real justice, think independently and wisely, and do the right thing.
Your choices will have real impact on real people. As stated above: You are using real power as a juror. Don’t let this power corrupt. Use it with honor. Be proud of how you used it—for the rest of your life. As a juror, you are using force. Use it well.
Oliver DeMille is the New York Times, Wall Street Journal and USA Today bestselling co-author of LeaderShift: A Call for Americans to Finally Stand Up and Lead, the co-founder of the Center for Social Leadership, and a co-creator of TJEd.
Among many other works, he is the author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, The Coming Aristocracy, and FreedomShift: 3 Choices to Reclaim America’s Destiny.
Oliver is dedicated to promoting freedom through leadership education. He and his wife Rachel are raising their eight children in Cedar City, Utah
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Lisa
6 years ago
Can you give an example of when you would have to have to choose #1 at the cost of #2? I haven’t seen the movie or ever been called for jury duty. I’m just wondering what type of situation this could be. Thank you.
Oliver DeMille
6 years ago
From my article:
“[J]urors…have two roles:
Keep the government in check
Provide a just determination of guilt or innocence”
Your question:
“Can you give an example of when you would have to have to choose #1 at the cost of #2?”
This is a great question, one that I wish a lot more people would consider. To do it justice, let me share several examples and the thinking behind them.
The framers made it the role of jurors to determine the facts of a case (innocence vs. guilt) and also the law in a case (what the Constitution or statute really means as applied to a specific case). Since the Sparff case in 1895, many courts and judges haven’t wanted juries to determine law. But the framers believed this is really important.
Practical examples: Say the law says nobody can hit another person. John is walking with his wife through the neighborhood one evening, just for a walk. The pass a neighbor’s house and wave at their neighbor when suddenly a car pulls out, two guys jump out and start hitting the neighbor. John runs over and tries to stop them, but they won’t quit. They are beating the neighbor on the ground, and won’t stop. John hits one of the guys, and both guys run back to the car and drive away. The police arrest the two guys and take statements from everyone involved. The two thugs are released are charged and go to court. The police also charge John for hitting one of the attackers.
You are on the jury. The judge instructs the jury that it is your role to determine if John is innocent or guilty of breaking the law. He further instructs you that only he, the judge, has the right to determine the law. Then he tells the jury that hitting the thug was breaking the law. Period. If you say John hit the guy, then John broke the law. If you say John didn’t hit the guy, then John didn’t break the law.
You, and everyone else on the jury, is in a pickle. As the facts come out during the testimony, it becomes clear that the thugs were wrong, and the they’ll probably go to jail for the assault. But you are told that their actions have nothing to do with John’s case. Your role as a jury is to determine whether or not John hit the thug. If he did, he’s guilty.
#1 and #2 are at odds.
If you vote “guilty,” because John hit the thug, and everyone saw it (maybe someone even caught it on their phone and the video was shown in court), then as a juror you may be sending a man to jail, fine, or other punishment for doing the right thing. The framers did NOT consider this justice, but modern courts sometimes come up with ridiculous outcomes because they leave this to the discretion of prosecutors or judges. Juries tended to do better, before the shift. Most prosecutors will look past the letter of the “don’t hit people” law in such circumstances. Most judges too, and give no or very little penalty. But some prosecutors and judges don’t exercise such common sense in some cases. This is because we are in a precedent-based system, where previous rulings are given decisive weight in a ruling, rather than solely judging the case on its own merits – and this leaves some judges in the bind of worrying about what precedent they are presently setting for future application, as opposed to simply considering what true justice for the victim and the accused in the case they’re working on right now.
The framers wanted juries of regular people to be the final guardians of justice. So they created a system where juries could vote “not guilty” because they thought John didn’t hit the guy (the facts), and also where juries could vote “not guilty” if they believed John hit the guy but it was a good thing (the law).
In other words, the regular people are the Beginning and the End of law-making in a truly free society. They are the Beginning because they elect government leaders who go to Congress and pass the laws. They are the End of law because they sit on juries and if Congress passed a bad law or a dumb law and the courts uphold it anyway, they can say “not guilty” and let John free–regardless of what the Congress and Judges say. In fact, framers-style juries can even agree with a law, but see that in a specific case like John’s it would be unjust to enforce it. Juries, the regular people, have the final say.
Or, at least, they’re supposed to. But few lawyers see it this way nowadays.
Of course, any attorney could take the John example above and add all kinds of specifics, complexities, and twists to it. But I wanted to keep it as simple and basic as possible. In essence, the American founding fathers trusted the regular people to apply justice better than government officials.
After this was explained to a third year law student one time, he replied: “We can’t allow the regular people to make the law. That makes no sense.”
My response: “That’s what King George’s staff said to the American founding fathers. Thank goodness they didn’t listen.”
The law student was shocked. After a long silence, he said, “That’s amazing. You’re right.”
But few people are taught this nowadays, including in law schools.
Another example: Imagine you live in China and are asked to be on a jury to judge a mother who broke the 2-child or 1-child policy. (Of course this isn’t the kind of judicial system you’d be under in China, but play along for a minute…) Under a Founding-Fathers system, you as a jury could tell the woman she’s free to go home because the law is bad. Under the typical modern approach, in contrast, the judge would tell you as a jury member that your only purpose is to say whether or not the woman actually had three children or not. Then the judge would take it from there. The framers wanted this power to be firmly in the hands of the regular people, through juries.This second approach is a power grab by the judiciary, pure and simple.
I hope I’ve answered your question. A jury member who only knows about his Constitutional duty to do #2, is going to do whatever the judge tells him/her. A jury member who knows his Constitutional duty to do both #2 and #1 is going to think differently–he’s going to know that his first priority is make sure the Congress and the specific Judge is truly delivering justice. If not, the jury member will know that it’s HIS job to do so.
It’s the most powerful check the founding fathers gave the regular people, even a bigger check than voting. It’s also the only powerful check on the judicial branch. This is a big deal. The framers didn’t give the President or the Congress any way to strongly check the Court (Jefferson said that this was the Constitution’s biggest flaw), but they did give the regular people such a check. Today, almost nobody uses it. Or has even heard of it. But it’s real.
With all that said, the truth is that in a number of situations juries can ONLY do #2 by doing #1, because the only way to get a TRULY just outcome is to decide “not guilty” (because the law itself is bad or not very Just given the specific circumstances). For example: A man drives drunk. Obviously he’s guilty and should face the legal consequences. But what if the man was kidnapped by an enemy, force-fed alcohol, beaten and left in the desert to die, and told by the enemy that he was driving straight to the man’s home to rape and kill his wife? So the beaten man staggers his way to a the closest road, finds a car left by hikers or someone and drives to find the closest cell phone in the nearest highway–then calls the police to protect his wife? Far fetched? Yes. But what if it happened? Some prosecutor might charge the guy with DUI and car theft. The framers wanted juries of regular people, not prosecutors who are rewarded for the number of convictions they get or judges who are measured and rewarded for how few decisions get overturned, to make the ultimate decision. Regular people who would just want the most justice.
The framers wanted the most Just and Free approach, so they made juries of regular people a powerful check on the judiciary.
By the way, asking this kind of question is deep. Are you in the Black Belt in Freedom program that I teach? We cover this and other very important details of freedom in the Black Belt program.
Keep asking great questions!