If You Get Called to Jury Duty

What should you do if you are called to jury duty and are faced with being placed on a criminal case against someone you think is being prosecuted under an unjust law, such as a law against adult unmarried cohabitation, or against polyfidelity (as Utah has had on the books), or against consanguinamory? NOTE: THIS IS A PHILOSOPHICAL ESSAY, NOT LEGAL ADVICE.


The Basics of Criminal Case Juries in the US

Here in the US, people being accused of criminal activity have a right to a trial by jury or they can go with having a judge decide their case. If they go with a jury trial, the judge pretty much acts like a referee until the jury reaches a decision. The decision will be in the hands of the jury, not the judge. The judge should give you no indication of whether they think the defendant is guilty or not.

For a criminal conviction, the jury of twelve people has to unanimously decide the person on trial is "guilty" and it is supposed to be because the prosecution proved their case for guilt "beyond a reasonable doubt." If just one person (or, up to eleven people) on the jury says "not guilty" and won't budge, the case ends in a mistrial and the prosecutor can try again with another jury. If all twelve say "not guilty" then the accused is cleared of that crime and can't be retried for the same crime for the same incident. People can appeal after they've been convicted of a crime, but their appeal usually won't get them cleared.

Why This is Relevant to This Blog

48 of 50 states have a law against some form of consanguinamory, and all states would currently consider a marriage licensed filed by, say, a sibling couple, to be fraudulent. Some states criminally prosecute first cousins for having sex, and about half of states will not marry first cousins, and so first cousins who file a marriage license may be prosecuted for fraud. So, consensual sex and "fraud" are two things for which Friends of Lily could be unjustly prosecuted in state courts. Federal courts would deal with consanguinamory on an "Indian Reservation" (land controlled by indigenous peoples) and in the military.

If you're an American citizen, you might be called to jury duty about once per year. For each case, there is a screening process to see if the judge and the prosecution and the defense all agree that you'd be an appropriate juror (including being sufficiently unbiased) for any given case. For example, if you're a teetotaler and think drinking at all is sinful, you're probably not going to get placed on a jury in a DUI trial, but you might end up on a shoplifting trial.

Until we have relationship rights, including full marriage equality, for all adults, there is a possibility if you're an American citizen that you could get considered to serve a juror for a case in which someone is being prosecuted under the unjust laws mentioned above.

Your Basic Choices

Please keep in mind that this blog does not officially offer legal advice. Also, please keep in mind that there is such a thing as "contempt of court," in which a judge can have you thrown in jail if you do something they consider to be problematic in their courtroom. Finally, if you are "sworn in" or put under oath, lying can be prosecuted as perjury.

With the above in mind, your basic choices if you are being considered to serve on a jury in one of these cases are:

1) Get out of jury duty by, when they question you, saying you can't possibly be impartial because you believe what the people are alleged to have done shouldn't be a crime.

2) Give the impression you agree with the law and will serve without a prejudice for or against conviction, then once it is time for the jury to deliberate to rule "guilty" or "not guilty", refuse to vote "guilty" and refuse to budge.

There is a chance you won't actually get picked to serve on the jury if you choose the second. You certainly will not be placed on the jury if you choose the first.

The first choice would be the honest thing to do. But honesty is not always the most ethical policy. An extreme example: You're in Germany in 1943. Government officials come to your door and ask you know of anyone in the neighborhood hiding Jews. You're hiding Jews, but being honest is NOT the right thing to do. The judge, who has to constantly deal with people trying to get out of jury duty, might be irritated with you (or might appreciate your honesty), but you'd get removed from consideration to be on that case.

You would definitely irritate the judge and the prosecutor (and might be found to be "in contempt of court") if you loudly (so all the rest of the potential jurors could hear) elaborated by saying something like, "This shouldn't be a crime to begin with. Who is the victim? In light of Lawrence v. Texas, United States v. Windsor, Obergefell v. Hodges, and the Fourteenth Amendment of the Constitution, it is clear to me that this law is unconstitutional. Consenting adults have a right to private sex and a right to marry, and I personally know people who are in such a relationship and it is a very beautiful thing. I'm aware that jurors can vote 'not guilty' when they understand a law to be unjust."

That last thing is called "jury nullification". Yes, the prosecution proved their case, yes, the defendant broke the law, but you vote "not guilty" because the law is unjust. It has been used for good and bad. An example of how it has been used for bad is when white racists on a jury refused to convict a white person of murdering a black person even though they knew the white person was guilty.

If you try a more gentle approach, you're less likely to get in trouble while still getting the other potential jurors to think critically about the case. The gentle approach would be, for when you are asked if you have questions or if you understand the charges or the nature of the case, to ask something like, "So, this is a situation involving consenting adults and not an abuse case?" followed up with "Why is that illegal? I don't understand." It would best to seem genuinely surprised. The more questions you can ask in your apparent attempt for clarity, the better. Think something like, "So there's no victim?" and "I have a friend who has a genetic condition. Is it illegal for him to have sex with [or marry] another consenting adult because he might pass along his condition to his children? No? OK, then why are these people in trouble?" You can come up with many different questions using the material here.


The second choice, which would be indicating you will give the case impartial consideration based on the evidence presented, might get you on the jury, but might be breaking the oath. Although, the prevailing allegiance is to the Constitution, and these laws are unconstitutional.

If you did this and  are placed on the jury, you could prevent someone from being sent to prison (and registering as a sex offender if that's a possibility, and all of the other things that come along with being criminally convicted under these laws) by at least taking the case to mistrial. If you are the lone "not guilty" vote, it is likely the prosecution will try again with another jury, but there's a chance they won't. You'd have to endure a lot of pressure from at least some of the other jurors (if the prosecution does prove their case) and even the judge, but unless it can be proven that you lied to get on the jury or have been violating the judge's orders by doing research during the trial, you wouldn't get into any trouble. In the best case scenario, you would convince anyone on the jury who wanted to vote "guilty" to go with "not guilty" and get the defendant(s) cleared of the crime and they would be free and couldn't be retried for the same events. Even if you didn't get that, if you convince SOME of the other people on the jury to go with "not guilty" the case ends in a mistrial, and if the jury was split 7-5 or 6-6 or whatever, the prosecutor might not want to bother with another trial.



When A Guilty Verdict is Good

The one time a conviction of guilt would be "good" is if it was set up as a test case to try to get the state law or federal law overturned by a higher court or to get a nationwide overturning of the laws by the Supreme Court. That's because after the conviction, the defendants would appeal to the higher courts to have the conviction overturned, and the case would hopefully work its way up through the court system. Test cases are usually planned out between lawyers and the people who are going to be arrested and put on trial. BUT... it is likely someone who has planned a test case is going to go with a trial by judge, not a jury, even avoiding the trial by simply pleading "no contest" and then appealing the judge's "guilty" decision.

Also note that for some things, a civil lawsuit can be filed to attempt to get a test case going, rather than undergoing criminal prosecution, with the same ultimate goal of a higher court such as a state Supreme Court, Federal Court of Appeals, or US Supreme Court ruling in favor of rights and equality. An example would be a consanguinamorous couple suing a state/county office for a marriage license.


Final Thoughts

You should vote "not guilty" even if you don't like the defendant or you think the relationship isn't a good one, if the prosecution didn't prove their case. Also, one may decide to engage in jury nullification even if the case was proven and even if they don't like the defendant or don't think the relationship is a good one, because nobody should be criminally prosecuted for having a consensual relationship with another adult.


Please note that if YOU are in such a relationship, the Fifth Amendment protects you against being forced to incriminate yourself, so you don't have to volunteer that you yourself are in such a relationship or have been. It's better not to.

This blog can't tell you what to do if you ever get called to jury duty for a case like this. You'll have to decide for yourself how you'll handle it.