Policy | Dolan Law Firm

Jury duty and disabilities

Following an article I wrote recently on jury selection, I was contacted by a Stephen W., a psychiatrist, who asked that I inform people who suffer from disabling conditions about their rights if called for jury selection. I was reluctant to write this article, as I do not want to provide people with excuses to try and get out of jury service. However, I have personally observed over the past 25 years that there are people with disabilities, both physical and mental/emotional, for whom jury service may be ill-advised or damaging.

Jury service is a civic duty. The right to a jury trial is one of the fundamental rights all Americans possess, ensconced within the Bill of Rights, the first ten amendments to the Constitution, and the Seventh Amendment. Interestingly enough, there is no right to vote contained in the Bill of Rights. Not until 1870, following the civil war, was the Fifteenth Amendment passed which stated that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State because of race, color, or previous condition of servitude [slavery].”

Jury service is a fantastic experience in participatory democracy. You and twelve ordinary citizens, after listening to the facts of a case, and the instructions on the law given by the judge, get together in a room and deliberate. Webster’s Dictionary defines “deliberate” as “to think about or discuss issues and decisions carefully.”

Jurors are identified by voter roles and DMV records and are chosen at random. The local jury commissioner issues subpoenas through the mail. California law provides that a juror may be summoned only once a year. Some trials are longer than others. For example, a criminal misdemeanors trial for shoplifting may take a day, whereas a murder trial may take several months. Likewise, a civil trial for a simple rear-end collision may be a day long, whereas a complicated wrongful death case or employment discrimination case may take weeks or months. The longest trial I have ever participated in was an employment case that lasted three and a half months.

There are penalties for any prospective trial juror who has been summoned for service and fails to attend as directed. Pursuant to California Civil Code Section 209, a judge may issue a warrant of attachment compelling a person who fails to respond to a juror summons to come before the judge. Following a hearing, the court may find a prospective juror in contempt of court, a crime punishable by fine, incarceration, or both.

Nevertheless, under Code of Civil Procedure Section 228, a prospective juror may be disqualified at the judge’s discretion if they have an incapacity which makes them unable to perform the duties of a juror. The California Rules of Court Rule 2.1008(d) states reasons for which a judge may grant an excuse from jury duty, including when a prospective juror:

Lacks “reasonably available means of public or private transportation to the court”
Must travel in excess of 1.5 hours from home to the court
Would bear extreme financial burden taking into consideration their income, expected length of jury service, availability of reimbursement for lost income, risk of compromising their ability to support themself and any dependants, and other unjust outcomes
Would unduly and unavoidably risk material injury to their property
Is “immediately needed for the protection of the public health and safety” to prevent “substantially reducing essential public services”
Is required for the personal care and attention of a dependant with no comparable economical substitute

Finally, and relevant to your question, a judge may grant a prospective juror excusal from service if they have “a physical or mental disability or impairment, not affecting that person’s competence to act as a juror, that would expose the potential juror to undue risk of mental or physical harm.”

Prospective jurors who believe that they medically or psychologically cannot sit as jurors should come to court on the date of their summons with a letter from their physician, psychologist or psychiatrist. Before jury selection, the judge will ask the assembled prospective jurors if they have a hardship which would preclude them from jury service. Those who believe they do will be allowed to fill out a hardship questionnaire. That is the time to inform the judge of your disability, supported by documentation verifying appropriate impairments and detailing their probable duration and impacts on ability to serve as a juror. If such an individual is aged 70 years or older, no documentation is required. They will then review your request, may ask for a letter or further explanation, and will grant or deny your request as appropriate.

A juror with a disability may alternatively be entitled to an accommodation so that the prospective juror can participate in the trial. California Civil Code Section 224 states, “The court shall appoint a service provider whose services are needed by a juror with a disability to facilitate communication or participation.” Available services include court-appointed sign language interpreters, oral interpreters, or deaf-blind interpreters. Likewise, a juror may ask for breaks, the ability to stand or even lie down. (Yes, one time I had a juror with a bad back who was allowed to lie down during the trial with her head propped up so she could see the evidence)

Some prospective jurors may seek disqualification due to a special vulnerability to emotional distress given the facts of the case at hand. In a case I tried several years ago, a prospective juror indicated they suffered from depression and felt that the case we were about to try, involving a woman claiming severe emotional distress, would be emotionally damaging to her. The judge, after hearing from the prospective juror, and observing her demeanor, dismissed her from further jury service. In another case, involving gynecological malpractice leading to the death of a baby, the judge excused a prospective juror who was pregnant and felt that it would be psychologically traumatizing for her to hear the facts in the case. Moreover, criminal trials for rape, assault, sexual abuse or death of a loved one may involve facts which are too intense for some people who may have suffered from similar crimes. If the facts of a particular case are the basis for a hardship, the judge may dismiss such a juror or send them back to the Jury Commissioner for assignment to a different type of case.

As a trial lawyer I encourage everyone to serve as a juror. Jurors are essential to our system of justice and, if you were a defendant or plaintiff, you would want a fair jury of your peers to hear your case.

This week’s question comes from Bryan L. in Oakland, who writes: “How do I get out of jury duty?”

Dear Bryan: Seriously, shame on you. Simple answer, DON’T.

One sure way to get out of being on a jury is to be a criminal defendant. Then you don’t have to sit on a jury and, at the same time, you will hope to God that you will have a group of people who didn’t try and evade their civic responsibility and are willing to sit and fairly hear your case and defense. Another way is become a convicted felon and be deprived of your constitutional rights such as bearing arms, being free from unlawful search and seizure, and the ability to sit on a jury or vote.

The original founders, who fought and died for our independence called the right to a jury: “A sacred right” …. “the most important privilege which freemen can enjoy.” The deprivation of a right to jury trials was one of the main grievances leading to the Revolutionary War. This right is listed in the Magna Carta, the Declaration of Causes and Necessity of Taking Up Arms (1775) and the Declaration of Independence (1776). So, jury service is not a hassle, it is a sacred duty people died for. It is part of what we are fighting to establish all over the world with our armed forces.

The United States Constitution, in the Sixth Amendment (part of the Bill of Rights) proclaims: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The California Constitution Art. 1, Sec. 16 states: “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons….” In criminal actions in which a felony is charged, the jury must also consist of 12 persons, in misdemeanor cases the parties can agree to a lesser number.

The California Legislature has proclaimed: “The Legislature recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship. It is the policy of the State of California that all persons selected for jury service shall be selected at random from the population of the area served by the court; that all qualified persons have an equal opportunity, in accordance with this chapter, to be considered for jury service in the state and an obligation to serve as jurors when summoned for that purpose; and that it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner.”

As a practical matter, your county court uses DMV and voter registration lists to select potential jurors at random. The purpose of random selection is to ensure that cases are decided by a fair cross-section of the community, also affording members of all communities the opportunity to contribute to our justice system at the ground level. Jurors are not expected to have any specific knowledge prior to serving; they need not even speak perfect English to qualify so long as they can understand and discuss the case. The only requirements for jury service are U.S. citizenship, at least 18 years of age, residence in the county serving the summons, and absence of conservatorship or felony conviction. Persons with disabilities are entitled to reasonable accommodations including wheelchair access, readers, assistive listening devices, sign language interpreters, and real-time captioning.

Most trials require a week or less of your time, although length may vary depending on the complexity of the legal issues involved and how quickly jurors arrive at the required level of consensus. Jurors receive a $15 per day stipend plus one-way transportation costs beginning on the second day of service. Your employer is required by law to excuse you from work without negative repercussions while you serve as a juror; if you experience harassment or other adverse employment action, you can file a claim with the California Division of Labor Standards Enforcement. However, it is always advisable to notify your employer as soon as possible after receiving your juror summons to allow for any necessary preparations to be made in case of your absence. If there is a reason why a specific date is inconvenient for you, you can usually request to postpone your service for up to six months by following the instructions on your summons notice.

No potential juror should be called for service more than once in twelve months and no one may serve on more than one jury concurrently. If you think you have been called improperly, you should call the court to resolve the situation. Additionally, there are limited circumstances under which you may request an excusal from jury service for at least one year, including if you are over 70 and have a serious health condition, if you are a breastfeeding mother or are otherwise indispensable to a dependant’s care, if you require accommodations that the court is unable to provide, or in cases of extreme financial hardship. However, if you are qualified to serve and have not been granted an excusal, failure to respond may cost you up to $1,500 in fines.

As sacred of an institution as jury service should be held, it has not been spared by criminals seeking to fraudulently exploit others’ civic commitment. In recent years, there has been a trend in “spam” phone calls from people purporting to be court officials requesting personal identifying and financial information. Jury staff will never ask for personal information over the phone. If you receive such a phone call, do not give any personal information and immediately contact your local police department and jury service office.

As a trial lawyer who brings cases on behalf of his injured clients in front of juries, I can tell you that jury service is the purest form of democracy that exists on this planet. It is part of a process where 12 people decide what the community standards will be, whether rights will be bestowed or taken away. All juries that I have appeared in front of felt proud and patriotic after serving on a jury. So you should try it before the day that maybe your rights may be taken from you without a trial by your peers.

So lets all of us, be patriotic Americans and serve our country by responding to our summons for jury duty when called upon. Help bring fairness and justice to our troubled world.

By attorney Christopher B. Dolan, owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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