Federal court Jury duty

[davem]

If the question thing is OKAY then why did the Constitution have to include that Congress shall have the power to take a census? It had to be in the Constitution because otherwise the citizen could tell the government it is none of their business how many people dwell at a certain residence. Now that is not a crimminal situation yet it still had to be included in the Constitution. In the kind of country I want to live in the government can't go around asking you questions without cause.
Let's say you are on a jury call and in seating the jury in a drunk driving case one lawyer asks a potential juror if they have ever been arrested for drunk driving- fine, fair question.
What about, Are you a Jew?
Are you gay?
What's that have to do with a case involving a drunk driver?
What if the party entrusted with calling jurors says, "oh I just want to know who is a Jew, or gay, or owns a gun IN CASE we have a trial where that might be relevant". Does that make the questions okay?
This is how I see it, it is not up to a court to ask such questions in choosing jurors, jurors ought to picked at ramdon. It is up to the two lawyers to opt for their allotted rejections, etc.
AND, as I said. No one complains any more. What I say isn't the way it works these days- I'm aware of that. I was on a drunk drinking case a few years ago and the judge gave his final instructions to the jury as to what evidence we could or could not consider, on what points we had to base our decision, etc. When we got into the jury room most of us (myself included- I'm ashamed to admit) just started doing as instructed. An elderly man, of minority race, piped up and put our minds right. "We are the JURY we can do anything we want to do". Amen. It took a person of minority race to get my mind right- thank you.
I'm not kidding on the ACLU- I know they are liberal and such but I'd run the thing by them and ask them if questions on gun ownership are okay. If such questions are okay today then what will be okay in the future? I'm no lawyer but it certainly seems wrong to me.

 

[psyfly]

I fail to see how, if I am compelled under the law to answer a question which reveals what I have in my home, that doesn't constitute a search (by proxy). Which compelled answer has required me to perform the search for them.

Best,

Will

 

[Spats McGee]

If the question thing is OKAY then why did the Constitution have to include that Congress shall have the power to take a census? It had to be in the Constitution because otherwise the citizen could tell the government it is none of their business how many people dwell at a certain residence. Now that is not a crimminal situation yet it still had to be included in the Constitution.

And exactly how is this relevant to screening of potential jurors?

In the kind of country I want to live in the government can't go around asking you questions without cause.

Perhaps, but your statements about the A4 protecting us against "unwarranted questions," as opposed to "unreasonable searches" is still incorrect.

Let's say you are on a jury call and in seating the jury in a drunk driving case one lawyer asks a potential juror if they have ever been arrested for drunk driving- fine, fair question.
What about, Are you a Jew?
Are you gay?
What's that have to do with a case involving a drunk driver?
What if the party entrusted with calling jurors says, "oh I just want to know who is a Jew, or gay, or owns a gun IN CASE we have a trial where that might be relevant". Does that make the questions okay?

And perhaps the court has a docket loaded with cases which might make the question of gun ownership a relevant question. We don't know one way or the other.

This is how I see it, it is not up to a court to ask such questions in choosing jurors, jurors ought to picked at ramdon. It is up to the two lawyers to opt for their allotted rejections, etc.

Many judges have their own screening processes, and those processes are often based on the judge having practiced law for some years. As a result, the judge can often guess at many of the questions the lawyers would ask. I've had a potential juror excused without any input from myself or opposing counsel. (Which was actually OK, because one of us undoubtedly would have excused her immediately, anyway.)

. . . . If such questions are okay today then what will be okay in the future? I'm no lawyer but it certainly seems wrong to me.

There can be many differences between what one of us finds "wrong" or "objectionable," and "unconstitutional."

 

[Frank Ettin]

I fail to see how, if I am compelled under the law to answer a question which reveals what I have in my home, that doesn't constitute a search (by proxy)...

Find us a federal court of appeals that agrees with you. And the Fourth Amendment does not protect us against all searches -- only unreasonable ones.

 

[JimDandy]

But cite me a case in which asking a question is a "search."

Well I'd certainly like to, but

Sigh, more of your wild guesses.

takes something out of the asking questions and getting answers process. But if I were to do so, I'd probably start with the exclusionary rule stems from 4th amendment case law, and that it applies to coerced confessions, and follow that up with some research into the origins of the rule, Miranda, and coerced confessions in general on the off chance I'll find a case (either win or loss for the fourth amendment) that says the answers to questions are evidence, and evidence is seized

As for Spats, I was only linked Haynes to as a cite for the the 5th Amendment tangent.

 

[Spats McGee]

I fail to see how, if I am compelled under the law to answer a question which reveals what I have in my home, that doesn't constitute a search (by proxy). Which compelled answer has required me to perform the search for them.

The simple answer: Because SCOTUS hasn't said that it is a search. SCOTUS has generally held that a "search" requires some kind of physical intrusion into a space in which one has a reasonable expectation of privacy:

The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3, 132 S.Ct. 945, 950–951, n. 3, 181 L.Ed.2d 911 (2012).

Florida v. Jardines, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013)

By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment's protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

Florida v. Jardines, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013)

As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U.S., at 286, 103 S.Ct. 1081 (opinion concurring in judgment).

United States v. Jones, 132 S. Ct. 945, 951, 181 L. Ed. 2d 911 (2012)

I suspect that many of us find the question objectionable. I do. It seems like an invasive question. I would no more feel comfortable answering that than I would answering questions about whether I own a DVD player, or what kind of car I drive. That doesn't make it unconstitutional, either on an A4 or A5 basis though.

 

[JimDandy]

SCOTUS has generally held that a "search" requires some kind of physical intrusion into a space in which one has a reasonable expectation of privacy

Didn't the Katz case I link change that though? Or am I missing something like Katz being overturned too? http://www.law.cornell.edu/supremecourt/text/389/347

 

[Panfisher]

I would answer: Yes, which one?, again which one?. Don't think you would have to worry about being called for duty.

 

[Spats McGee]

Honestly, I didn't read Katz from your link.

The quotes that I linked above did raise the question in my mind as to how the whole "physical intrusion" element plays out in the information age, but I didn't really want to go down that path. That said, there is at least an arguable distinction where the activities of a government agent leads to the transmission of information or evidence (as in Katz), and the submission of a questionairre by a citizen (as in the OP).

The question then becomes, what's the penalty for not answering the question?

ETA: It also appears that in Katz, gov't agents (FBI) had placed listening devices into a public telephone both. That satisfies the "physical intrusion" aspect.

 

[sigcurious]

To clarify, the bug was not in the phonebooth it was outside of the booth. This is a critical point in Katz which shapes modern 4A thinking. The lack of need for physical intrusion to warrant 4A protections is re-enforced in Kyllo v US.

The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466; Goldman v. United States, 316 U.S. 129, 134-136, for that Amendment was thought to limit only searches and seizures of tangible [p353] property. [n13] But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294, 304. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

Emphasis mine

While not directly addressed in Katz, the decision touches on the idea that one's words can be protected by the 4th.

 

[Spats McGee]

Thanks for the clarification, sigcurious.

 

[JimDandy]

That said, there is at least an arguable distinction where the activities of a government agent leads to the transmission of information or evidence (as in Katz), and the submission of a questionairre by a citizen (as in the OP).

I've never claimed it wasn't arguable, but I have a question the assertion/distinction between the State and the "citizen" providing the questionnaire. The question could have come from the prosecutor, and even if not, the court is still supposed to be compelling an answer? Shelley v Kraemer 334 U.S. 1 (1948)

(a) Such private agreements, standing alone, do not violate any rights guaranteed by the Fourteenth Amendment. Pp. 334 U. S. 12-13.
(b) The actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment.
(c) In granting judicial enforcement of such private agreements in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment.

(a) such questions, standing alone, do not violate any rights guaranteed by the Fourteenth amendment.
(b) The actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment.
(c) In granting judicial enforcement of answering such questions in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment.

It's the same philosophical principle as Agent of the State question I raised earlier as well. The government can't do something through someone, they can't do themselves without them sort of thing. Compelling you to answer someone else's question that they can't compel you to answer if they asked it seems awful similar to having someone break into and search your house when they can't get a warrant to do it themselves.


Now as you've said, the Supreme Court hasn't said so, yet - if ever, so it's not established yet. But the framework appears to be there.

For me the question is was the question reasonable under the case(s) being tried. Which is a step we've somewhat skipped over. I don't see how it could be, but without knowing the cases involved (which we probably can't ever know) we can't really say one way or the other. We could be correct that asking everybody those questions is an unreasonable "search" and wrong that asking THOSE people this question was an unreasonable "search".

Edit to Add: Here's a quote from that FLETCH.Gov website from my first post on the subject, that really helps me form how to phrase the question I have-

Miller: Can private parties ever trigger the 4th Amendment?

Solari: Yes, as we discussed, if a private party were to be acting at the behest of the government -- if a government agent were to ask that FedEx person to open up a package and look inside, or to ask someone’s girlfriend to go through their things looking for evidence to turn over to the police, then that would be government activity. That would be the actions of a government agent because government agents can’t ask private parties to do something they themselves couldn't do under the 4th Amendment, so in that type of instance it would be extended to that private party.

If the government can't ask the Fed Ex guy to open your package and tell them what's in it, how can they (assuming that by compelling an answer to the questionnaire is an action of a judicial officer etc etc and thus an action of the state) force you to metaphorically look inside your home and tell you what firearms if any are in it?

 

[tyme]

Do you or anyone in your household possess a fire arm? Yes/No

What kind of gun is it?

What is it used for?

This is a legal document that you must sign. To lie on this is considered perjury.

I find questioning in this manner to be more then a little inappropriate and I'm very uncomfortable answering such questions. What possible justification could they have for asking that?

I remember getting a federal jury duty questionaire a couple of years ago, but I don't remember such questions on it. I wonder if they're new? Did some bureaucrats add them post-Sandy Hook or post-Aurora?

I suppose I'd write something like, "4th and 5th Amendments, as well as Douglas's penumbra of privacy, preclude me from giving answers to these questions. If you feel like trying to compel me to answer them, they must be important for some judicial reason, at which point I'll directly invoke the 5th." If some corrupt federal judge doesn't like it, she or he can call me into court and explain on the record exactly why I should have to answer such questions on a jury survey. A much more appropriate question (like, for voir dire) would be "do you support the RKBA?" Absolutely. I think everyone not in prison should be able to carry firearms with few restrictions. Can I go home now, since you won't be needing me on the jury for this firearms case?

Definitely don't lie, but lying and not answering aren't the same thing.

Is there anything wrong with that strategy?

 

[iraiam]

I will be a cold day in hell before I answer those questions. I would like to see the statute that requires me to answer them, it doesn't really matter though, because it's not going to happen.

 

[JimDandy]

We have more hurdles as well. If you search for IRS and Fourth Amendment you'll run into this scholarly(?) article which makes the claim that fourth and fifth amendment protections don't apply to civil actions. As a prospective juror, I'm not sure it's either criminal or civil action.

 

[KyJim]

Back to the original questions:

So I just got a jury summons for the 2ed quarter of the year for the 2ed year in a row. I have worked in law enforcement so I'm not worried about being selected. As part of the process however you are required to do a survey. This question as far as I can recall was not on the survey last year.

Do you or anyone in your household possess a fire arm? Yes/No

What kind of gun is it?

What is it used for?

This is a legal document that you must sign. To lie on this is considered perjury.

I find questioning in this manner to be more then a little inappropriate and I'm very uncomfortable answering such questions. What possible justification could they have for asking that?

1. Do not get cute in answering these. That is likely to draw unwanted attention to you and perhaps earn you a contempt citation. You can be succinct and general at the same time without crossing the line. For example: Do you possess a gun? Yes. What kind? multiple Purpose? sporting-defense

2. Do not lie. That is both immoral and illegal.

3. If you feel strongly enough about it, you should just leave them blank. That may or may not draw attention. I've seen lots of juror questionares which had unanswered questions. You might get asked about this and you should explain that possession/ownership of firearms is a fundamental right per SCOTUS and asking you to disclose information about that is similar to asking how you voted. Of course, they'll know the answer if you say that. You may still be ordered to answer and you'll have to decide if it is worth possibly going to jail over.

My suggestion is to go with #1. As some of the others here (the attorneys) have noted, the parties to a lawsuit or a criminal case need personal information in order to determine if you can be a fair juror.

 

[Frank Ettin]

Lots of flights of fancy.

The issue here is about a simple question violating Fourth Amendment guarantees of freedom from unreasonable searches and seizures. No on has come up with a case in which a federal court of appeals has said that a simple question violated Fourth Amendment guarantees. Instead folks have come up with irrelevant cases dealing with wiretaps and surreptitious surveillance, a case involving an attempt to enforce a racially restrictive covenant running with the land, and various Fifth Amendment cases.

Katz and the wiretap cases all involve some kind of surveillance, intrusion or eavesdropping under circumstances in which one has a reasonable expectation of privacy. I discussed Shelley v. Kraemer here:

...It really seems to be a dead case. This was not a case of a court dealing with an ordinary contract having a racially restrictive covenant.

Some things to note about Shelley that would make it inapplicable to a case involving the enforcement of a usual bilateral contract:

1. The Shelleys were an African-American family who, in 1945, had bought a home in a particular subdivision. The subdivision dated back to 1911, at which time the owners of the individual parcels all agreed that no parcel within the subdivision would be occupied by non-Whites. This agreement was recorded. This is an example of a "restrictive covenant running with the land."
   
   
2. The seller of the property was not a party to the suit. He had sold the property to the Shelleys, and was, as far as we know, completely happy with the deal.
   
   
3. A lawsuit was brought in state court by other, neighboring, property owners to keep the Shelleys from moving into the neighborhood. The state court issued the requested injunction, and the Shelleys sued in federal court to block enforcement of the injunction.
   
   
4. Note that the Shelleys were not being sued in state court on the basis of anything they agreed to. The underlying agreement being relied upon by the state court plaintiffs was entered into among past owners of the property. We don't know if any the Shelley state court plaintiffs were even signatories to that underlying agreement, nor do we know if the person selling the property to the Shelleys was a signatory.
   
   
5. But in any case, the underlying lawsuit against the Shelleys was not based on any contract the Shelleys had entered into or any promises made by the Shelleys to any of the state court plaintiffs. There was, as we say, no privity of contract.

I've not seen anything like the core theory of Shelley being applied in any case not involving a restrictive covenant running with the land.

Further, Shelley may well be an example of the adage that hard cases make bad law. The Shelleys being dispossessed of their home was apparently unacceptable to the Court, yet at the time there were limited tools available to deal with such a repugnant result. In any case, Shelley is probably moot at this time because the various state and federal civil rights and anti-discrimination laws now available would provide ample statutory grounds to avoid a Shelley situation.
...

...I'd probably start with the exclusionary rule stems from 4th amendment case law, and that it applies to coerced confessions, and follow that up with some research into the origins of the rule, Miranda, and coerced confessions in general on the off chance I'll find a case...

You're welcome to try, but I think you'll come up empty. The exclusionary rule of course is the principle that evidence collected in violation of a defendant's constitutional rights generally can't be used in evidence against him in a criminal trial. And the rule in Miranda applies only to custodial interrogations. We indeed have Fifth Amendment law to the effect that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).

 

[tyme]

Frank, while I'm not saying there is any case law on the subject, what is the functional difference between, on one hand, searching your home for guns and surveilling you whenever you put guns in your car, and on the other hand, asking, on a government form, under penalty of perjury, what guns you have and what you use them for?

If there's no functional difference, how can the constitution prohibit a "search" sans warrant, while not prohibiting a mandatory questionnaire sans warrant?

 

[Frank Ettin]

...how can the constitution prohibit a "search" sans warrant, while not prohibiting a mandatory questionnaire sans warrant?...

1. The Constitution does not prohibit a search without a warrant. The Constitution protects us against unreasonable searches. All sorts of searches under various circumstances are permissible without warrants.
   
   
2. How is asking a question a "search"? Has a court ever ruled that asking a simple question is a search? That question has been on the table now for a while, and no one has come up with a federal court of appeals ruling that asking a simple question is a search.
   
   
3. Courts which have looked at what constitutes a search have focused on physical intrusions into areas in which one has a reasonable expectation of privacy or surreptitious surveillance under circumstances in which one has a reasonable expectation of privacy.
   
   
4. We are frequently required to answer questions asked by government.
   
   
   • If you go down to the post office to pick up a package that requires a signature, you will have show your ID. Is that a search?
     
     
   • We must answer questions on tax forms. Is that a search?
     
     
   • If you are a witness to a crime or to an accident, you may be required to answer questions. Is that a search?
   
   
5. There is wide spread misunderstanding of the scope of the protections afforded us by the Fourth and Fifth Amendments. These are valuable protections, but they are sometimes not as plenary as people think. On one had, those protections protect personal privacy interests. On the other hand, those protections can frustrate the discovery of useful, important or necessary information -- and the discovery of the truth.

 

[tyme]

1. Reasonable is a weasel-word. I acknowledge that the courts have decided some things are reasonable and others are not, but they have not declared that it's reasonable to search for make and model of items in your home without a warrant (not yet, at least). So, does it even matter?

2. That was the core of my question. How is this *not* equivalent to a search? The means are different. The results could be the same.

3. If one can be asked under penalty of perjury what someone would find if they conducted a physical search, again, *how is it not effectively a search*? I am not interested in the definition of search as a physical incursion into a private space. If a questionnaire has the same outcome, why shouldn't it be considered a search and why shouldn't 4th amendment protections apply?

Using a questionnaire as a means to ask questions irrelevant to suitability for jury duty, simultaneously side-stepping the 4th amendment (questions are not a physical search) and 5th amendment (no realistic threat of criminal prosecution and the answer is unlikely to be incriminating --as long as you answer truthfully :wink: ) seems at best stupid and at worst malicious, but difficult to pin down a reason why it shouldn't be answered. That's why my original post referenced 4th, 5th, *and* Douglas's famous opinion on the matter.

4a. Clear necessity. You don't want someone else being able to retrieve your mail.

4b. Tax law asks questions about finances and other things relevant to how much tax you owe.

4c. That hypothetical of being a witness covers a lot of ground, and I can't answer what I would or wouldn't answer in such a broad set of cases. A question asking if I own The Anarchist Cookbook is not a search, but it's equivalent to a search, and can be declined on 5th amendment grounds where the 4th amendment covers the equivalent physical search.

5. I recognize that. To the best of my knowledge, the 5th amendment protects against being forced to make incriminating statements that can be used in criminal cases, when a reasonable person might believe that the statement might be incriminating and might be used in a criminal case.

However, the way law enforcement and prosecutors, particularly the feds, operate, I take *any* interaction with them *at all* to represent a non-negligible risk of getting dragged into some criminal prosecution, depending on the mood and interests of whatever federal prosecutor is dealing with the case. And even if there's no hint of a criminal case *yet* does not mean there won't be in the future, so in many cases I would be inclined to invoke the 5th amendment defensively even if there's no obvious criminal case in progress.

All this is based on the fact that I don't have close contact with anyone in law enforcement and therefore any contact is likely to be adversarial.