Reflections on Voir Dire

When I was undergoing voir dire for potential jury duty the other day, I was asked if I could apply the law as given to me by the judge even if I disagreed with it. I said that I could as long as it wasn’t patently unjust or offensive. The lawyer rephrased the question to ask if I believed in the “rule of law”. I indicated that I did but that I probably had a different idea of the meaning of the expression. She was using it to cover the statutes enacted by a majoritarian tyranny. I don’t acknowledge the legitimacy of such legislation. It was unlikely to be an issue in a dental malpractice case, but I felt that I had to be honest (and it’s a good way to stay off of a jury).

If it had been a criminal matter, I might have concealed my views on jury nullification to have a chance to mess with the system. I would never convict anyone of a drug “crime” or any other vice related charge.

In orientation for jury duty, we watched a video that harkened back to the days of trial by ordeal, and the narrator implied that the jury system was all that stood in the way of a return to such barbaric practices. (I wonder if trial by combat or trial by ordeal is still technically available). I suppose our jury system will one day be looked upon as barbaric and irrational, especially nowadays when the jury has been reduced to a cipher in most cases.

A joke some lawyers like to tell is that we wouldn’t want our fate decided by people who weren’t smart enough to get out of jury duty. Unless juries are also triers of the law as well as triers of fact, the system is not as valuable as it could be. In some cases, juries have been the last bastion of the common man against the powerful. In southern West Virginia back in the mine owner/miner conflicts, juries were the only part of the apparatus of the state that the mine operators had not suborned. The mine owners tried to curtail the right to trial by jury in the legislature, but the legislators from the rest of the state wouldn’t go along with it. They couldn’t get convictions of agitators. They finally resorted to assassination, but they never got control of the “legitimate” criminal justice process.