Why is it unlawful for an officer of the court to inform a jury they may find as they see fit, absolutely? Jury nullification may not be the worlds best know term, but it's certainly no stranger to this Stack. I'm curious how it comes about, and how it is legally justified, that an officer of the court is forbidden from telling a jury of a right that it has. I can imagine &quot;populist&quot; and &quot;conservative&quot; (small c) answers that it would create chaos, or throw the law into disrepute, or allow guilty parties to be free. I can well believe those are practical arguments to contemplate, but I'm still not convinced. When I think it through, these are some of my main concerns: The status quo is that a jury has absolute discretion to follow the law or substitute its own finding in lieu, without need to justify. But the court and its officers may not tell them they have that right. That's going to mean that some trials will have a jury informed of its discretion before retiring, and some won't. How is this justified as fair justice? We trust 12 individuals to decide whether they believe a matter is proven beyond reasonable doubt. Surely if so, we may also trust them to not misuse discretion either? (At most, add a suitable direction) Individuals informed of their right to ask a jury to nullify, must artificially fire their representative, then self-represent, to do so. It's artificial in that they don't wish to, but it's then only way to directly seek it of a jury or inform them or address the possibility. This is disruptive and contrary to the interests of justice. Also probably ineffectual as it doesn't stop anyone, just raises a mental barrier. Surely having a right as a defendant that may accrue to one's benefit, but be forbidden by national law or formal court processes as written, to have competent counsel mention or request it, with the express purpose that the jury shall be ignorant of their full rights in the matter of a verdict (and left with the incorrect belief that they have no discretion available), is in breach of human right to a fair trial? So... we trust a jury to rightly judge guilt - including capital guilt. But not to be even aware of discretion. And I'm left with the question at the start, as a result.
The &quot;why&quot; is pretty simple: the duty of the court is the ensure compliance with the law and uphold the rule of law. A statement to the contrary would undermine that obligation and would undermine a juror's oath to rule consistent with the law. But, out of institutional considerations, any rule that would make jury nullification impossible would also undermine other aspects of the jury trial that are designed to make a jury's determination of the facts of a case in a manner consistent with the law independently. And the oath of jury members to uphold the law is seen as adequate to secure the goal that juries uphold the law. One of the main points of a jury as an institution is to make random members of the general public who will never assemble together again and whose reasons aren't disclosed, rather than an identifiable individual who will continue to serve for decades and is identified with the government responsible for unpopular resolutions of particular criminal cases. If a judge could inquire about the reasons for a jury decision and punish them for making a decision for the wrong reasons, this appearance of independence and transfer of responsibility would be defeated. Another purpose of a jury trial system is to democratize the courts and to make a collective decision of the people at large look like one. But, even rare instances of jurors being disciplined for rendering a verdict in a manner that a judge grilled the jurors upon and found wanting would be problematic with respect to the cause of getting jurors (who already readily evade service) to serve. Therefore, continuing to keep in place the practices with respect to appellate review and the privacy of jury deliberations that makes jury nullification possible in fact, while not acknowledging this &quot;loophole&quot; in the system, is viewed as a suitable compromise. This isn't a breach of a human right to a fair trial because jury nullification is an extra-legal benefit to a criminal defendant to which they have not entitlement for the trial to be fair, and because governments don't have human rights. A jury nullification is in the same moral and human rights territory as an executive branch pardon. It can provide a safety valve that, because of the persons who are exercising it, we believe to be fairly safe from undue abuse, even though it does not implicate legal rights strictly construed.
Neither with or without a warrant, if the confession is all there is. For a felony, the question is whether there is probable cause (4th Amendment). This is true whether the police arrest you, or they get a warrant – the difference being that in the latter case the warrant is issued by a guy with much greater knowledge of what constitutes probable cause. The question then would be whether a confession alone constitutes probable cause. There is a venerable rule, the corpus delecti rule (300+ years old) that requires there to be independent evidence of a crime, the point of this rule being to to prevent mentally ill people from being convicted of a crime that never even happened. Under that rule, a confession alone would not be probable cause (but a confession and a bloody glove could be). This article reports that at the federal level and in 10 states, there is a lower bar of mere "corroboration" without the need to argue that there was an actual crime. Exemplifying this relaxing of the traditional rule, in Opper v. United States, 348 U.S. 84, the court held that "[a]n accused's extrajudicial admissions of essential facts or elements of the crime, made subsequent to the crime, are of the same character as confessions, and corroboration by independent evidence is required". However, "[t]he corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti" and "[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth; but those facts plus the other evidence must be sufficient to find guilt beyond a reasonable doubt". In such jurisdictions, courts take a "totality of circumstances" approach focusing on whether the confession is trustworthy.
There's nothing illegal about the media discussing your case. In fact most media outlets don't hold back many details about the accused, because it's all public information that anyone curious about it can get from the court clerk's office for free and with no reason specified. If jury selection hasn't started yet, then asking each juror about what they might know about the case is a pretty standard question that any competent defense attorney would be asking, even without knowledge of media coverage. If they already know about the case and say they can't put that knowledge aside when rendering a verdict, they are almost always dismissed. If you're concerned your defense attorney isn't aware of the media coverage, that's something you need to bring up with them. If jury selection already took place, and nobody bothered to ask them if they had prior knowledge of the case, then there's pretty much nothing you can do. A judge might ask the jury if anyone's seen the coverage, but it usually results in nothing happening. The media talking about your case is not grounds for a mistrial; it's rarely even grounds for a change of venue. Getting a mistrial would require you to prove a specific juror engaged in misconduct somehow.
Short Answer This account would be a fairly extreme outlier relative to normal practice in jury selection, but it is certainly something that could possibly happen (except for one small detail that isn't very relevant to the core issues that it raises; this detail is discussed below in the last heading of this answer). The substantive points made in the Facebook post about what the facts recounted say about the state of women's conditions and attitudes about women in our society, and the poster's skepticism that a judge who made decisions like these really acted appropriately, are well founded, fair, and appropriate to raise. These concerns are within the heartland of what the case law on these kinds of issues discusses and struggles with, although because of the procedural posture of this issue, there isn't a lot of case law on this issue. Long Answer My Sources Of Knowledge I have participated in choosing perhaps half a dozen juries in which I was counsel, and I have observed the process in other cases one or twice and have previously been in a couple of jury pools myself (I've never been actually selected to serve). I'm also familiar with accounts of others practitioners regarding their experiences with jury selection, I know what I was taught in law school about the process, and I am familiar with the academic and practitioner oriented literature about the process. I am answering based upon U.S. law, because I don't have intimate familiarity with petite jury selection in other common law countries, although the broad outlines of the process are similar. As a caveat to this answer, however, recognize that judges have very broad discretion in the jury selection process and that not all judges adhere to &quot;best practices&quot;. Further, in many states, judges are partisan elected officials who tend to end up in there positions because of, rather than in spite of, their extreme views and positions of legal issues over which they have discretion relative to the average lawyer or judges in places where the judicial selection process is less partisan. Your Questions How often are jury members subject to separate examination by defense counsel (or prosecution counsel) during jury selection? This usually happens in any case more serious than a simple traffic offense. It would be unusual to examine every single member separately in a separate room, but normally quite a few jurors a questioned separately on one point or another. This process is called voir dire (a situation in which U.S. legal terminology borrows from French rather than Latin). How frequently are jury members dismissed in the presence of other members? Jury members are usually dismissed in the presence of other members, but the specific juror responses to the reasons for doing so may or may not be discussed in the presence of the other jurors. Less sensitive questions (e.g., do you still live in this county, are you a U.S. citizen, do you speak English, do you have scheduled health procedures during the anticipated trial or a trip with a non-refundable ticket or similar issue, and a few other &quot;categorical&quot; exclusions) are usually discussed in the presence of other members, as are responses to general questions that are unlikely to be grounds by themselves for a dismissal for cause, but could inform peremptory challeges of jurors. The better and more common practice is for sensitive questions, such as a previous incident of being assaulted, to be discussed out of earshot from the other panel members, but in the hearing of the judge, at least one lawyer for each side and the court reporter who includes the bench conference in the trial transcript. Alternatively, how often are dismissed jury members informed of the selection or elimination of fellow jury members? Normally, jury pool members leave the courtroom and get on with their day once they are dismissed. But, if they choose to stick around, they will learn who is selected to serve on the jury, and who is eliminated from the jury pool. Is the defense counsel able to eliminate (all twelve) jury members from consideration (for cause) without objections by prosecution counsel? Terminology First of all, here and in your prior questions it is important to distinguish between the jury pool (a group of randomly chosen people who might end up being jurors) and the jury (a group of people ultimately selected to decide a case after challenges for cause and peremptory challenges are complete). The Voir Dire Process There is, in principle, no limit on the number of members of the jury pool who can be dismissed for cause, and if they run out, everyone goes home for the day and comes back the next day with a supplemental batch of jury pool members. In an obscure civil case or minor low profile felony case, the jury pool would typically be 30-60 potential jurors. In a death penalty case or case that has famous parties (e.g. a civil case involving Taylor Swift held in Denver recently), the jury pool would typically be several hundred people and the first round of voir dire would happen over the course of several days or even weeks. Any time that either party requests that a juror be dismissed for cause, the other party can choose to not object, or can object and argue that the juror should not be dismissed for cause. The judge doesn't have to dismiss a juror even when both parties agree to strike the juror for cause and not infrequently will refuse to dismiss a juror even when both parties agree to strike a juror for cause. This is because the judge has an institutional incentive to discourage jurors other than the one that a party has moved to dismiss from the jury pool from giving a lame excuse to try to get out of jury duty, even if the parties, who don't have that institutional concern, don't care about that. Why Might A Prosecutor Fail To Object? The downside of objecting to a request to dismiss a juror for cause is that it creates an almost automatic appellate issue for the party seeking to dismiss the juror if the juror is not dismissed. So, a prosecutor might not object to a questionable request to dismiss a juror for cause in order to reduce the likelihood that a conviction obtained by the prosecutor would be reversed on appeal. Giving the defense the jury it wants also makes it more likely that if the case starts going badly that the defendant will agree to a plea bargain mid-trial rather than risking a conviction by the jury, because any conviction obtained is more likely to hold up on appeal. A defendant may appeal a ruling denying a motion to dismiss a prospective juror that is denied after a conviction, if any, is entered. If the jury acquits the defendant (the unfavorable outcome the prosecutor would like to avoid by not having a juror dismissed for cause), the prosecutor can't appeal the case, and if the jury hears evidence, the case can't be dismissed without prejudice or retried unless there is a conviction that is reversed or there is a mistrial (the mistrial rules are bit complicated). So, if the prosecutor was really appalled by the dismissal for cause of so many women and felt that this would impair the prosecution's chance of obtaining a conviction materially, the prosecutor would have to dismiss the criminal charges so as to vacate the trial, before evidence was presented to the jury, and then refile the charges (assuming that this would be possible consistent with statutes of limitation and speedy trial requirements). But, this would be an extraordinary move with high stakes, because the prosecutor has a long term strategic interest in not pissing off a judge in any case because that could cause the judge to exercise the judge's discretion against the prosecutor in future cases. The judge and prosecutor may have to deal with each other in future cases for decades and will do so on a regular basis every few weeks or months. A judge is likely to be pissed off in this situation because dismissing a case ready to go to trial and scheduled for trial with a jury fully selected because the prosecutor was unhappy with the judge's rulings on motions to dismiss jurors for cause would not be appreciated by the judge who naturally believes that the rulings made on those motions were sound even if that belief is unreasonable. I strongly suspect that this was the reason that the prosecutor allowed all twelve women in the jury panel to be stricken for cause in the case that you describe (assuming, of course, that the Facebook account is factually accurate, which is sometimes the case and sometimes not the case – even if the gist of the account was accurate, it wouldn't be surprising if some technical details or nuances were incorrectly recounted). It Would Not Be Normal For A Prosecutor To Not Object In This Case Despite these procedural considerations, it would be very unusual for a prosecutor to not object to striking all twelve women on a jury panel for cause in these circumstances and it would be very unusual for a judge to agree to strike all twelve women on the jury panel for cause in these circumstances whether or not the prosecutor objected. Generally speaking, merely having had a prior experience of having been assaulted would not be sufficient to strike a prospective juror for cause. Normally, the prosecutor and/or the judge would ask the prospective juror if this experience made it impossible for that particular juror to be impartial in this particular case, and normally most of the prospective jurors asked that question would say &quot;no&quot;. Usually, in that situation, the judge would not agree to dismiss that prospective juror for cause. Most prosecutors would expect their objections to a request to dismiss a prospective juror for cause in this situation to be taken seriously by the judge and for only a few of these requests that cast the most doubt on the impartiality of a potential juror to be granted. And, most prosecutors would not consider the appellate risk involved in opposing a request to dismiss a prospective juror for cause in the typical scenario that I outlined above very troubling, because a judge has fairly broad discretion on dismissals of jurors for cause in the face of a marginal fact pattern. The fact that the judge allowed this also suggests that the prosecutor may know that the judge is very unenlightened and has misogynist leanings and that fighting the judge's ruling in this case would be a lost cause that is hard to appeal. (Of course, if any of the women had previously been assaulted by the defendant in this particular case and personally knew that defendant well, that would normally cause the potential juror to be dismissed for cause.) After Challenges For Cause Keep in mind also that after dismissals for cause are completed, a certain number of jurors equal to the number of peremptory challenges allowed to the prosecution and defense combined plus the number of jurors who need to be left over to decide the case would be put in the second stage of narrower jury pool. In this second stage, during which the narrower jury pool is honed to the actual final panel of jurors who will hear the case, each side exercises their allocated number of peremptory challenges (normally alternating back one forth, one juror at a time). While peremptory challenges can generally be made without good cause, you can not make a peremptory challenge solely based upon a potential juror's race or sex. If a side dismisses all women, or all men from the jury pool, there is a presumption that this is what was done by the party striking the jurors that must be overcome with convincing reasons not based on race or sex. The same analysis, strictly speaking, doesn't apply to motions to dismiss jurors for cause because in those cases a non-discriminatory reason has been definition been advanced by the party seeking to dismiss the prospective juror and accepted by the judge as convincing based upon the voir dire evidence. One reason not to fight very hard to dismiss a juror for cause is that many of those jurors who seem most favorably inclined to your case, although not necessarily all of them, are likely to end up being dismissed in a peremptory challenge in any case. A Footnote on Ex Parte Proceedings Ex Parte Voir Dire Is Improper The author of the OP also clarified that: When I asked, &quot;How often are jury members subject to separate examination […]?&quot;, I meant that only one party (or counsel for one party) is examining the jury at a time. E.g., first the judge and prosecution counsel examines the jury (without defense present) then the judge and defense counsel examines the jury at some other time. Normally, the judge asks boilerplate routine questions first, then one side asks questions, then the other side asks questions. But, it would be almost unheard of (and it would be improper and unethical) for this to happen without lawyers for both sides present to see what transpires during the other side's questioning, even if the prosecution wasn't planning to make challenges for cause, so as to gather up information needed for the preemptory challenge phase of jury selection. To have a proceeding without both sides having a lawyer present is called an ex parte communication with the judge which both the judge and the lawyer doing so have an &quot;ethical&quot; duty to avoid in this part of the jury selection process. An ethical duty means that the judge could be, in theory, kicked of the bench or temporary suspended or public reprimanded or require to take a judicial ethics class for doing so; and that the lawyer could similarly be disbarred or suspended from the practice of law or publicly reprimanded or required to take a legal ethics class for doing so. Conducting the proceeding ex parte could also be grounds for a mistrial ruling that would not prevent the defendant from being retried (because it would have been done at the request of and for the benefit of the defense counsel), or for an appeal in the appropriate cases. (There are ex parte proceedings which are ethical and permitted such as applications for search warrants and arrest warrants, but juror selection is not a proceeding to which an exception to the general rule applies.) The Prosecution Could, In Theory, Waive The Right To Participate In principle, the prosecutor could waive the right to be present while the judge and defense lawyer examine prospective jurors, but this would be almost bizarre conduct that would only happen if someone was calling about an incredibly urgent development that threatened to shut down the courts or put the prosecutor or co-workers or family at immediate risk of physical harm happened. For example, a prosecutor might waive a right to be present if the prosecutor wasn't planning on objecting to any jurors for cause and was learning that the 9-11 attacks were underway, or that a mass shooting at the prosecutor's offices had happened or was in progress, or a prosecutor having a spouse who the person they stepped out to talk with was in a newly discovered hostage situation, or the prosecutor suddenly feeling an intense need to vomit or being on the verge of passing out or feeling like a heart attack might be in progress. Even then, however, it would be more common for a judge to call a recess for a little while in any of those circumstances. The Case Description Is Probably Incorrect Or Misleading On This Point The ex parte examination of prospective jurors, which was apparently described, would be so far outside the norm of typical jury selection conduct, that I suspect that this part of the account is inaccurate or was confusingly worded. For example, the post's wording arguably misleadingly implied that there was an ex parte proceeding as part of the jury selection process, but it wouldn't be necessarily inconsistent with a scenario in which a prosecutor was already present with the female jurors &quot;before the remaining candidates were led into a room to meet the judge and defense attorney.&quot; For example, it could be that what really happened was that a member of the prosecutors office was introduced to the in the jury assembly room, and led the prospective jurors to the correct courtroom without making any comments to them, and then they met the judge and defense counsel, which would be entirely proper and not unusual.
They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction.
The Legal Answer: An officer's job is to turn over all evidence to the State's attorney and testify at trial truthfully. It is the State's attorney's job to turn over all evidence in discovery to the defense; to only prosecute people they believe are guilty or likely guilty; and to remedy clear and convincing false prosecutions as outlined in ABA rule 3.8 which is echoed in many state laws. Rule 3.8: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;... ...(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;... ..(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. If this new exonerating evidence is turned over to the prosecutor they would be required to submit it to the defense and the trial would likely be postponed for both sides to evaluate the new evidence. If they suppress the evidence it would be grounds for appeal and disbarment of the prosecuting attorney. It is not the officer's job to direct the trial, just supply evidence that supports the truth. But it also wouldn't help if the State's own witness suddenly started offering testimony contrary to supporting guilt and in light of new evidence the prosecution may reevaluate to not have this happen. The Ethical Answer: Kind of sticky going into ethics and the exact right response to this situation, but it sounds like the answer you want. Assuming an ethical prosecutor the this would be the same as the legal answer. If this is not the case and the officer reasonably believes evidence will be suppressed, they could turn over evidence to both parties directly or to the prosecution and make the defense aware that he submitted evidence. He could also notify the state bar association of the suppression by the prosecution should that happen. Of course these actions may be at peril to their job as an officer despite whistle blower protections, but if ethics were easy, people wouldn't have to talk about them so much.
Technically anyone can sit on a jury. Lawyers are not automatically excluded from juries anymore, as being called for jury duty is a right and a duty that the law abhors automatically excluding people from. That is the official line on this. However, in reality, lawyers will always be stricken from serving by one of the lawyers trying the case. Each lawyer has a certain number of preemptory strikes (the ability to get rid of a juror for any reason, aside from those protected by law, such as race, religion, etc). They also have unlimited "for cause strikes," which are when a juror is biased in some way. Lawyers trying the case almost always try to use a cause strike to get a lawyer off, saying that they are biased toward either Defense or Plaintiffs based on the type of law they practice. The judge will usually not let them use a cause strike, saying that an attorney is ethical enough to apply the facts to the law and not sway the jury based on their personal biases that everyone has; plus, we're officers of the court so we have a duty to be ethical. Hence, they are typically forced to use a preemptory strike to get a lawyer off, but they will, every time. (If the lawyer just tried a similar case, then they'd get to use for cause.) The real reason that the lawyer from one side or the other definitely wants a lawyer off is that the jury instructions presented by each side to the judge are crafted in a way that each word carries specific meaning and, with that, is designed to lead to a certain way of thinking. Once the lawyers have fought over the instructions and the judge decides what will be presented, the jury only gets them in writing...in some states not even in writing, they only get them read to them without a copy to take back to the room. If a lawyer is in the jury, that person will undoubtedly be able to explain exactly what the law requires for a finding, or exactly why a certain finding should be had. They will advocate one way or another; this is undeniable. The instructions are purposefully confusing. The reason is this: when we fight over jury instruction, inherently, one of us will want an instruction that is hard to understand, for a lay person. This is because we want them to apply the law as it is commonly (mis)understood, not as it truly is, because that's not good for our case. To have a lawyer on the jury would defeat the finely crafted instruction and its potential to confuse. They would undoubtedly explain the instruction to the jury. One may think this would be helpful, however, juries are told that any special knowledge they have about anything pertaining to the case shall not be shared as it could sway the jury. This is most true when it comes to a lawyer sitting. When a jury doesn't understand a jury instruction, their only recourse is to send a question to the judge. In states where they have the instruction in writing, all he can say is "read carefully;" he cannot give his interpretation of what the instruction means. If a judge did give his own interpretation that is grounds for a mistrial or an appeal at least. A lawyer on the jury would be able to explain, "Oh, what this really means is X," and this is bad from one side's perspective, almost always. We all have biases, and even finely determined rules of law can be subtly pushed toward one direction or another with the use of a certain word over another, or the placement of one element before another. Generally, unless the side who would most want the attorney off had exhausted their preemptory strikes, and lost the argument to remove for cause, there is very little chance a lawyer will serve. The fact of the matter is that both sides are very likely to want a lawyer stricken from the jury pool, (even from the side who may believe the lawyer to have leanings in their favor). It is essential to control as many factors as possible in a jury trial, and an attorney on the panel is just a wild card. The potential always exists that if a lawyer ends up on the jury, they could explain the elements of the case to their fellow jurors, who may then not rely as fully upon the carefully crafted language in the instruction(s). This could backfire on either side when certain portions of the language used may be intentionally vague or difficult to parse though for someone who doesn't practice law. Anyone interested in the process of choosing and striking jurors (in the U.S.), through the process of voir dire, this is a fairly comprehensive article on the topic.
Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair.