Nonjudgmental Jurors

 Posted on April 27, 2007 in Uncategorized

In almost every criminal jury selection I've seen, there has been at least one juror who has said that she is unable, because of religious beliefs, to judge other people. Almost universally and without further inquiry, the lawyers have not allowed these people to serve as jurors. That the defense lawyers (who probably want such people on their juries) don't try very hard to keep them has always rankled me a little bit.

Generally (in Texas at least) a juror who claims not to be able to judge other people is following her understanding of Jesus' admonition in Matt. 7:1, "Judge not, lest you be judged." The same juror, if questioned respectfully, would likely say that she can agree to render unto Caesar and decide whether the government has proven a violation of the law. After all, a criminal trial is not about moral guilt; it's not about who goes to heaven and who goes to hell; it's about whether the government, following all of the rules, can prove beyond a reasonable doubt that the accused violated the particular law alleged in the accusation. A juror who recognizes this and agrees to follow the law is rehabilitated, so that the government has to choose between (a) finding some religion-neutral reason to use a peremptory challenge on her and (b) leaving her on the jury.

At the Capital Voir Dire seminar I attended last week in Plano, someone had a better idea: a person should no more be barred from serving as a juror because of her religious beliefs than because of her gender or race.

The Texas Legislature mandated a specific form for the juror's oath in Texas Code of Criminal Procedure Article 35.22:

You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.

If there is a clash between a potential juror's religious beliefs and the juror's oath that makes it impossible for the potential juror to take the oath, that means that there is a problem with the oath rather than with the religious beliefs.

Using this reasonable proposition as a starting point, I made a record in my last trial that the juror was being excused because she could not judge, and that this inability to judge was based entirely on her religious beliefs; I objected that this violated her First Amendment right to the free exercise of her religion.Barring people with particular religious beliefs from serving on juries is extremely disrespectful toward those people and their religions. As Jamie Spencer points out in another context, if the government treats people with respect, it will receive respect in return. How large a portion of the population does the government have to disrespect before we all realize that government disrespects us all?

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