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Dec 15 2015

Making Jurors Understand the Bill of Rights

On this the 224th Anniversary of the ratification of the Bill of Rights, I was thinking about what to write about the document that defines our country as much as the Constitution does. It such a grand document covering so many broad issues I was thinking about to narrow my focus. Originally I thought about writing about how it seems that modern society doesn’t value privacy as much anymore – not only don’t they value it, they don’t cherish it, they don’t hold it dear as a right held by them to simply be free from government intrusion. How many times have you heard someone say about all this surveillance currently going on -“I don’t care if they listen to my cell phone calls or video tape me on the street, I’m not doing anything wrong. What are you worried about? If you’re not doing anything wrong what do you care?” I care because one of the main premises of this country is that the government cannot intrude on your privacy without fitting into certain exceptions.

I then thought about how I saw this mentality showing up and filtering its way into potential jurors. And in doing jury selection, I am often marveled at how little folks understand the relationship between what they tar doing as jurors and the Bill of Rights. Remembering that the main focus of this blog is about how law fits into society and about lawyering itself, I decided to write about how lawyers need to use and invoke the Bill of Rights in their jury selection. While I do this in all my cases, I will focus on criminal trials for this article.

This “what do I care” attitude about surveillance, etc is dangerous for defense attorneys trying criminal cases; even those cases that don’t involve surveillance. Because if jurors have this belief then you can be sure they also hold the belief that a person should take the stand in their own defense. After all, if you didn’t do anything wrong, why not say so, right? It is usually at this point in my jury selection that I take a quick detour to give jurors a civic lesson by asking them about their feelings about the importance of the rights granted to us by the Bill of Rights. Through a series of questions, I get them to talk about why these rights given to us are so important. I usually focus first on First Amendment rights because those are ones that folks usually think about and almost universally agree upon. I give a one or two line explanation about how those Founding Fathers of ours were not happy with the final version of the original Constitution because there was not enough language about the rights the citizens of the country had. The framers of the Constitution felt that the document only needed to say what the government was authorized to do and since it didn’t authorize restriction of individual rights, the people maintained all of their rights. That was not good enough for some folks and they insisted on listing those rights upon which the government could not intrude.

Happy birthday Bill!

Happy birthday Bill!

Talking about the rights in general and their importance then leads to the discussion about the right to remain silent and the presumption of innocence. NOTE: While the presumption of innocence is not specifically set forth in the Constitution or the Bill of Rights, it is seen as a direct corollary of the Fifth Amendment’s protection against self-incrimination). I challenge jurors to think about that right and hold that right as valuable as the right to a jury trial and freedom of the press. In a discussion format we talk about how jurors are their to serve and protect those rights – just as soldiers overseas are doing. I remind them that when we talk about the military protecting “our values” and “our American way of life” these issues – the rights granted to the criminally accused – are central. Fully half of the Bill of Rights deal with the legal system and when you consider that 9 and 10 are basically catch-all provision that don’t specifically enumerate any rights, then 5 out of 7 of the Amendments that give rights deal with the legal system. What does that tell you about their importance to the Founding Fathers?

There are many benefits to engaging in this conversation during jury selection. The accused’s decision to testify is always going to be in a juror’s mind no matter how much a judge tells them to ignore it. Too often, we pay lip service to these rights given to all of us – the right to a jury trial, the burden of proof, the right to be free from unreasonable searches and seizures – they are topics we learn in middle school and then don’t think about again unless we get arrested – OR we are asked to serve on a jury. Addressing this issue with jurors heightens their awareness of the meaning and importance of these rights which we usually take for granted. It also serves the benefit of something I call “Capturing the Flag.” Too often, prosecutors are seen by jurors as the protectors of the public good and as champions of law and order. This discussion about the Bill of Rights affords defense lawyers the opportunity to capture the flag back from the government and makes jurors understand that holding the prosecution to their proof and saying Not Guilty when that verdict is called for is as much a vindication of the American way of life as it is a vindication of the defendant. I know it sounds corny, and lawyers must adapt to their own personal style and personality but trust me -its important. If you just believe that most jurors will adopt and protect these rights just because they hear them once or twice from a judge during the trial you’re wrong. Jury research shows that most juror come into criminal trials believing the defendant is guilty and believing the defendant should testify. If defense lawyers don’t address those pre-conceived notions and don’t challenge jurors to be defenders of the Constitution (as amended) they are rolling the dice with their clients’ lives.

Here for your perusal is the full text of the Bill or Rights:

THE BILL OF RIGHTS – FULL TEXT
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

5 comments

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  1. Dr

    Brilliant once again.

  2. Sourpuss McNoodoes

    What you wrote might matter if we still used trials in this country, What percent of criminal cases are resolved with a trial. 1% ?

    There are so many areas of the criminal justice system that need looking at if not reform and you choose to focus on a complete outlier — a petit jury.

    The next time the prosecutor effectively dictates how much time your client will serve you can explain to the client how you would have primed the jury in this mythical world of jury trials.

    1. Oscar Michelen

      As someone who is hired by other lawyers to try their cases I am more focused on trials than most attorneys. And while you are correct that the vast majority of cases get plead out, when the other 2-3% are on trial, the petit jury is all that matters. As small a percentage as that is, cases are tried every day in every courthouse in NY. So folks can ignore that at their peril. Having prosecutors know that you are ready willing and able to try a case and get a result they were not expecting helps drive better plea bargains in your favor as well. Too many times in talking to lawyers in courthouses I hear how little they focused on jury selection and sending these important messages to the prospective jury panel. So this articel may be about a unicorn, but its an important unicorn that walks the halls of NY courts.

  3. Sourpuss McNoodoes

    I see. If I do something then it’s important to society generally. I’ll remember that.

    It should be too obvious to state but, of course, to any particular defendant the petit jury may be critical. Obviously to any lawyer doing trials “it’s all that matters.” That doesn’t change the fact that it’s statistically nearly irrelevant.

    You want important parts of the Bill of Rights in the criminal context. There must be dozens. Try the clause on Bail. The system of bail effects 100% of defendants and it appears to need looking into (see, e.g., Lippman’s discussion). Or the Grand Jury, which effects 100% of felony defendants in your state. That is certainly something important. It also seems to be problematic (e.g., most recently Tamir Rice).

    Suggesting what occurs with the petit jury is some major issue to pick out of The Bill of Rights should help perpetuate a not benign fiction that “justice” in the US culminates in a Jury Trial. It simply does not for all but the proverbial 1%. (And within that group likely only a subset can afford a robust defense by a private attorney.) However, I’m delighted that David Koch should he require it will be able to field a well funded defense team and the prosecutor involved will take this fact into consideration when offering a plea. But I’m more concerned with the 99% of defendants and the reality of how the criminal justice system operates with respect to those defendants.

    1. Oscar Michelen

      I write about what interests me and hopefully it has interest and applicability for others. If it doesn’t interest you, or if you think I am wasting my time, I am not offended. I have also written extensively and often aboutthe Grand Jury Process and other general issues in the criminal justice process. But I feel trial and dealing with jurors is something I know about and can add some substance and thought to the conversation as you will see in my next post which will also talk about jurors.

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