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VOIR DIRE (JURY SELECTION) EXPOSED

 
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truth1111
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PostPosted: Tue Nov 29, 2011 1:09 am    Post subject: VOIR DIRE (JURY SELECTION) EXPOSED Reply with quote

This is part of the text found in a copy of FIJAJuryNullPanphlet.pdf
some formatting has been lost during the cut and paste process.

Since the original location of the file is no longer available, I suspect that the file has been pulled due to some of the information in the file being out of date. However there is still a lot of good information to consider found in this material.

There are still several copies of the full pdf file found online if you would like to down load a copy:
www.google.com.ph/search?q=FIJAJuryNullPanphlet.pdf
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truth1111
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PostPosted: Tue Nov 29, 2011 1:15 am    Post subject: Reply with quote

VOIR DIRE (JURY SELECTION) EXPOSED
by Patricia Michl

1 . WHAT IS VOIR DIRE?

"Voir dire" (pronounced vwar deer) is a French term meaning
"to speak the truth." Voir dire consists of questions asked of
prospective jurors by the prosecuting attorney, defense attorney,
and judge. The purpose of voir dire questioning is to identify
and exclude partisans from serving on the jury. Partisans who
may be in the jury pool (the group of prospective jurors from
which the trial jury is drawn), could be people such as the
defendant's relatives or the detective who investigated the case.
These partisans are identified by voir dire questioning and
then challenged and removed. Also, jurors whose questioning
reveals bias or prior knowledge of the case are challenged and
excluded.

2. WHAT TYPES OF CHALLENGES CAN BE MADE
DURING VOIR DIRE?

There are two types of challenges that can be madc to a
potential juror: the Peremptory Challenge and the Challenge
For Cause.

3. WHAT IS THE DIFFERENCE BETWEEN A
PEREMPTORY CHALLENGE AND A CHALLENGE

FOR CAUSE?
The Peremptory Challenge

The peremptory challenge is an objection, made by a party,
to a potential juror for which there is no reason given, but upon
which the court shall exclude the juror from serving on the jury.
NO reason or "cause" is necessary for this type of challenge. i EXCEPT that peremptory challenges may not be used to exclude
women or minorities merely because of their gender or race.
Bntsori v. Kentucky, 476 US. 79 (1986).
The number of peremptory challenges per side is limited by
statute or court rule and varies from state to state. For example,
in the State of Washington in prosecutions for capital offenses
the defense and state may challenge peremptorily 12 jurors
each; in prosecutions punishable by imprisonment in a penitentiary,
6 jurors each; and in all other prosecutions and in civil
cases, 3 jurors each. Washington State Superior Court Criminal
Rule 6.4(e)(l).

The Challenge For Cause

The challenge for cause is also an objection to a potential
juror. However, this type of challenge must have some reason
or "cause" given. Some of these reasons may be that the person:
is less than 18 years of age; is mentally or physically unable
to serve as a juror; is related to one of the parties in the case; has
a financial interest in the outcome of the trial; or has an opinion
against the law in the case. Challenges for cause are unlimited
in number. The attorneys will raise the challenge for cause, and
the trial judge will rule on that challenge.

Also, the trial judge may, on his own motion, exercise challenge
for cause to remove a juror without any action from any of
the attorneys. Washington State Superior Court Criminal Rule
6.4(c)(I).

[see the Washington State statute, RCW 4.44.140 - 4.44.190
which defines peremptory challenges and challenges for cause
at the end of this article]
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truth1111
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PostPosted: Tue Nov 29, 2011 1:19 am    Post subject: Reply with quote

4. DOES VOIR DIRE QUESTIONING AND CHALLENGES
FOR CAUSE DECREASE THE LIKELIHOOD THAT

THE JURY WILL NULLIFY THE LAW?

Yes. Voir dire questioning is used to identify the prospective
jurors who are opposed to the law at issue in the case, and then
unlimited challenges for cause are routinely used to strike them
off the jury because they are deemed by the judge to be "biased".
The specific statute in Washington State that is used to do
this is Revised Code of Washington (RCW) 4.44.170(2), see
below. Because all dissenters against the law have been removed
from the panel, the jury is less likely to nullify the law at
issue.

The court (trial judge) may exclude prospective jurors -
"For the existence of a state of mind on the part of the
juror in reference to the action, or to either party, which
satisfies the court that the challenged person cannot try the
issue impartially and without prejudice to the substantial
rights of the party challenging, and which is known in this
code as actual bias." RCW 4.44.170(2) [underlining added]
Representative statutes and court rules follow from other
states which are also used to strike off prospective jurors who
may be opposed to the law at issue:

"Actual bias is the existence of a state of mind on the part
of a juror that satisfies the court, in the exercise of sound
discretion, that the juror cannot try the issue impartially
and without prejudice to the substantial rights of the party
challenging the juror." Oregon Rules of Civil
Procedure 57 D(l)(g)

"That the person has opinions or conscientious scruples
which would improperly infZuence the person's verdict."
Alaska Rule of Criminal Procedure 24(c)(4)

"For the existence of a state of mind on the part of the
juror in reference to the rose, or to either of the parties,
which, in the exercise of a sound discretion on the part of
the trier, leads to the inference that he will not act with
entire impartiality, and which is known in the code as actual
bias." Idaho Rule of Criminal Procedure 19-2019 (2)
These examples are representative only; every state's voir
dire statutes and/or court rules will contain similar language
which allows the court to strike from the panel all those citizens
opposed to the law at issue in the case


A common method that trial judges use to exercise challenge
for cause against a juror is to ask the question, "Can you follow
my instructions about the law as I dictate"? If the answer is
"No" then the juror is removed. And sometimes the juror is
removed even when the answer is "Yes" because the judge
earlier elicited opinions from the juror critical of the law.
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truth1111
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PostPosted: Tue Nov 29, 2011 1:22 am    Post subject: Reply with quote

5. DOES JURY SELECTION (VOIR DIRE) = JURY STACKING?

Yes. When the jury panel is sifted and molded through
relentless voir dire questioning with unlimited challenges for
cause the result is a stacked jury. The jury is no longer a randomly
selected cross-section of the community.


6. WHO WINS IN THIS STACKING PROCESS?
The government wins. The challenges for cause assure that
the jury will be stacked with government partisans who have
expressed their propensity to uphold the law at issue. This is
particularly true when the law is unpopular and there is significant
community opposition to the law at issue (victimless crime
laws). The panel will be purged of all dissenters against the law,
regardless of how much the community may be opposed to the
particular law at issue in the trial. The lawyers and the judge
will keep challenging and replacing jurors until an unrepresentative
jury is chosen.

These challenges for cause, although worded in a neutral
fashion ("impartial"), only work one way in actual practice. It is
always a successful challenge for cause against a juror that he
opposes the law, but never a challenge for cause that the juror
supports the law.

However, the effects of voir dire are less egregious when the
law has the support of the community (crimes with true victims).
There are usually no dissenters to the laws against murder,
robbery, forcible rape, burglary, etc. In a case involving these
laws, the voir dire stacking process does not so severely distort
the make-up of the jury.


7. DOES VOIR DIRE RESULT IN UNBIASED JURIES?
No. Voir dire results in juries biased in favor of the
government's laws. These laws may not even enjoy the support
of the community. But voir dire assures that only jurors who
support the law will be seated on the jury. Only those who
support the law are found by the trial judge to be "unbiased" in
the voir dire questioning and challenge for cause process.
Washington State's RCW 4.44.170 (2) and the voir dire statutes
of other states give the trial judge broad powers to probe the
"state of mind" of the juror and to determine who is biased and
who is unbiased.

"For the existence of a state of mind on the part of the
juror in reference to the action, or to either party, which
sati.vJies the court that the challenged person cannot try the
issue impartially and without prejudice to the substantial
rights of the party challenging, and which is known in this
code as actual bias." RCW 4.44.170(2) [emphas is added]
Judges routinely deem jurors who are opposed to the law at
issue to be "biased" and "partial", while deeming jurors who
support the law to be "unbiased" and "impartial".

This is a gross distortion of the term "unbiased." In the
context of jury trials, "unbiased" should mean that the juror is
not prejudiced against nor predisposed towards this particular
defendant. It should not mean that the juror holds no opinion
about the law or other factors that will impact the trial. Every
juror holds countless opinions, and these opinions should not be
cause for exclusion from the jury. Many decent, upstanding
citizens are excluded from jury service through the voir dire
process just because they hold opinions critical of the law.
This is political discrimination and a violation of the First
Amendment.

It should be noted that Batson v. Kentucky, 476 U.S. 79
(1986) forbids racial discrimination in jury selection and encourages
a rainbow of skin colors on the jury. But what good does it
do to have a rainbow of skin colors on the jury, only to have the
voir dire process stack all of the minds on the jury with the same
shade of government gray?
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truth1111
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PostPosted: Tue Nov 29, 2011 1:25 am    Post subject: Reply with quote

8. DOES VOIR DIRE RESULT IN CROSS-SECTIONAL
JURIES?
No. After all the sifting by the prosecutor and judge to purge
the jury of those who are opposed to the law at issue, the only
remaining jurors will be government partisans, hardly a crosssectional
jury; i.e. no dissidents or independent thinkers will
remain on the jury.


9. CAN THE DEFENSE ATTORNEY OVERCOME
THE CHALLENGES FOR CAUSE BY USING
PEREMPTORY CHALLENGES?
No. There is no way for the defense attorney to "catch up"
with the prosecution in jury selection. Because the defendant's
peremptory challenges are limited in number, the defense
attorney can not undo the rigging process performed by the
judge and prosecutor through the limitless challenges for cause.
The jury will always be biased in favor of the law. Remember, it
is never a challenge for cause that the juror supports the law at
issue; hence, the defense attorney can never use a challenge for
cause to remove a juror who supports the law, and he is stuck
with a panel of government partisans.


10. HOW CAN A CROSS-SECTIONAL BALANCE BE
ACHIEVED?
Draw jurors totally at random from the widest possible pool
of community members and, except for the reasons mentioned
in the privacy rule below, include all jurors. No probing questions.
No jury consultants. No questionnaires. No purging. No
sifting. No manipulating. No political discrimination. Just seat
the jury.


11. COULD LEGISLATION CORRECT THE PROBLEMS
OF VOIR DIRE?
Yes. See the Fully Informed Jury Association's proposed
juror privacy rule at the end of this article. This rule would
assure that voir dire questions are limited to legitimate questions
about a juror's bias for or against a particular defendant. The
juror's privacy would not be violated by questioning about the
juror's political or religious beliefs.


12. WHAT ARE LEGITIMATE QUESTIONS TO ASK
JURORS?
Only the following types of questions should be asked of
potential jurors:
name, age, address, occupation, and citizenship (identification
questions);
whether the juror knows, is related to, or has business relationships
with any of the parties, attorneys, or witnesses in the case
(bias to the person);
whether the juror has a direct financial stake in the outcome of
the case (financial stake);
and whether the juror has a medical or physical condition that
would interfere with his or her ability to serve as a juror (medical
or physical condition).


FULLY INFORMED JURY ASSOCIATION'S
PROPOSED JUROR PRIVACY RULE

"The questioning of prospective jurors during jury selection
in all cases shall be limited to the following four areas of inquiry:
The name, age, address, occupation, and citizenship of the
prospective juror;

Whether or not the prospective juror knows or is related to,
or has any financial, business, or employment relationship with,
any of the attorneys, witnesses, or parties in the case;
Whether or not the prospective juror has a direct financial
interest in the outcome of the case;
Whether or not the prospective juror has a medical or physical
condition that would interfere with his or her ability to hear
and examine the evidence or interjfere with his or her ability to
participate in jury deliberations.

No other kinds of questions shall be allowed to be asked of
prospective jurors during jury selection, and they may properly
refuse to answer any question put to them that is outside of these
four listed areas."
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truth1111
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PostPosted: Tue Nov 29, 2011 1:33 am    Post subject: Reply with quote

CONCLUSION


It is time that citizens realized the jury's power to sit in
judgment of the law when the jury decides cases. If the people
come to view some of the laws intruding upon their lives as
tyranny, then the peoplc, chosen at random from a fair crosssection
of the community, must be allowed to serve on juries to
undo those laws. Freedom and justice are not served by seating
skewed juries which have been stacked to favor the government.
The true purpose of juries is "to prevent oppression by the
Government." Duncan v. Louisiana, 391 U.S. 145, 155-156
(1968).


The jury can not prevent government oppression if its members
and their political beliefs are being sifted by the government
during voir dire. Only by seating conscientious, independent
jurors, citizens who are willing to challenge the law at issuc
in the case, will immoral and unjust laws be struck down - first
on a case-by-case basis, and then systematically when the
prosecution realizes the futility of even charging certain crimes
and stops prosecuting them. Ultimately the politicians will heed
the jury's message against unjust laws and move to repeal those
laws.


Alcohol Prohibition was repealed only after a massive jury
revolt of hung verdicts and verdicts of acquittal against it. If the
voir dire stacking process had been used to prevent large numbers
of independent juries from rendering jury nullification
verdicts against Prohibition in the 1920s and 30s, we would still
have the ugly Alcohol Civil War raging today.


Voir dire reforms that encourage more independent juries will
initially bcncfit thc dcfcndant, who now consistently emerges
the loser in the current voir dire debacle. But ultimately, with
voir dire reforms in place and with the jury nullifying unjust
laws and leading the way to their eventual repeal, voir dire will
favor neither defendant nor prosecution. Justice will be the only
winner.



(Patricia Michl is a practicing attorney in Pierce County,
Washington and is a member of the Board of the Fully Informed
Jury Association)
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