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Commentary by James Conlogue
Special to the Herald/Review
There’s a story from Texas about a prospective juror who was surprised by the definition of manslaughter. During the jury selection process, the judge explained that a homicide could be manslaughter if the defendant acted in the heat of passion, such as when a spouse finds his/her mate in a compromising position. The juror expressed concern about the definition saying that during her first marriage she found her husband in bed with a neighbor. She told the judge: “All I did was divorce the %@#*&, I had no idea I could have shot him.” The prospective juror was excused.
In all seriousness, jury service is one of the most important civic duties that citizens in our country are called upon to perform. In fact, it has been said the whole of democracy is contained within the ballot box and the jury box.
Jury service is not overly burdensome. Most jury trials in Cochise County last no more than two to five days. Jurors are not obligated to serve more than one time every two years. The vast majority of jurors who hear a trial to completion report very favorably on their experience. Still, many people shudder when the jury summons arrives.
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Some prospective jurors seek to be excused because of schedule conflicts such as important work matters or planned vacations. For these folks, it’s important to know that jury service can be postponed up to two times to avoid such conflicts. In order to obtain a postponement, the prospective juror need only contact the jury commissioner in person or by telephone, mail or e-mail. A third or subsequent postponement may be granted only in the event of an extreme emergency.
Good excuses are defined by the Legislature. Statute provides that a prospective juror shall be temporarily excused from jury service for the following reasons:
1) The prospective juror has a mental or physical condition that causes the juror to be incapable of performing jury service.
2) Jury service by the prospective juror would substantially and materially affect the public interest or welfare in an adverse manner.
3) The prospective juror is not currently capable of understanding the English language.
4) Jury service would cause undue or extreme physical or financial hardship to the prospective juror or a person under the prospective juror’s care or supervision.
5) The prospective juror is a certified peace officer.
6) For good cause based on a showing of undue or extreme hardship. In addition to those excuses, a person older than 75 may be temporarily or permanently excused from jury service by submitting a written request.
The circumstances set forth above are obviously good reasons to be excused from jury service. However, those situations do not prevent a juror from serving if the juror is otherwise able to serve. For example, it is common for certified peace officers and persons older than 75 to report for jury service even though they could have been excused.
Bad excuses usually arise when a juror seeks to be excused “for good cause based on a showing of undue or extreme hardship.” The phrase “undue or extreme hardship” is wide open to interpretation and it just begs for creativity. For example, several years ago a juror sought to be excused because he planned to attend a St. Patrick’s Day party that was set to begin earlier than the close of court business. No offense, but that juror probably would have been better off by following up with a claim that he had a mental condition that caused him to be incapable of performing jury service.
Disqualifying excuses are generally addressed in the process called “voir dire.” As a word of advice, you should always be concerned whenever a lawyer starts speaking Latin and the voir dire process is no exception. During voir dire, the judge and lawyers ask the prospective jurors questions to determine whether any juror is disqualified. A person is disqualified to serve on a jury if the person is:
1) A witness in the case.
2) Interested directly or indirectly in the case.
3) Related to any party “by consanguinity or affinity within the fourth degree.”
4) Biased or prejudiced in favor of or against any party.
Most questions during voir dire primarily focus on uncovering any potential bias or prejudice. Presumably, the prospective juror in the Texas manslaughter case (described at the beginning of the article) was dismissed for bias or prejudice. The voir dire process allows prospective jurors to focus their attention on the particular case and compare it to any similar life experience they may have had.
Most jury trials involve cases that have at least some emotionally charged aspects. As these aspects are explored, some prospective jurors honestly find that they cannot be fair and impartial in that particular case. Those prospective jurors are then disqualified or “excused for cause.”
Each jury selection is different and it is difficult to predict which, if any, jurors will be excused or disqualified. For that reason, a number of additional prospective jurors are called to participate in the jury selection process. Some of those prospective jurors will not have to participate in the voir dire process. Those (lucky?) jurors are simply excused when a panel is selected.
At the conclusion of the voir dire process, all the surviving jurors are qualified to participate in the trial. Both sides in the case are then allowed to make preemptory strikes. In other words, each side is permitted to exclude a number of otherwise qualified jurors. No reason for the strike need be given. However, a strike cannot be made for an impermissible reason such as excluding a juror on the basis of race. After the preemptory strikes, the jury trial can finally begin.
As a final note, one particular jury empanelment comes to mind every time I select a jury. During the jury selection process, I noticed a juror who was obviously in discomfort. The juror answered questions as they were posed and never sought to be excused.
At one point, I told him directly that I noticed his discomfort and I asked him if he thought he could sit through the trial. He explained that he was injured in combat and that it was hard for him to sit for any extended period of time. That was clearly good cause in my mind and I offered to excuse him if he requested. He looked me in the eye and explained that he understood his duty. He had willingly served his country before and he was prepared to serve again that day.
No other juror asked to be excused that morning.
JAMES CONLOGUE currently serves as the Division V judge in the Cochise County Superior Court. Look for the Inside the Courts column the last Sunday of each month.
Jeff Rogers wrote on May 17, 2008 4:28 PM: