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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.

 

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How do I get out of jury duty?

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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What Happens When Someone Dies Without A Will?

This week’s question comes from Nathan P. from San Carlos who asks: “My wife died suddenly. We were separated at the time of her death but hadn’t filed any kind of papers. We were just taking some time to figure out where we were at and where we were going after 20 years of being married. We had two children, aged 10 and 14. My 14-year-old son died in the same accident. I always told my wife that she needed to draft a will, but she believed doing so could invite death, so she has no will. Her mother is angry with me for our separation and is stating that she should get all her assets and the value of her share of our home which we owned jointly. What happens when someone dies without a will?”

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What Is The Law On False Imprisonment In A Retail Store?

This week’s question comes from Lionel T. from South San Francisco who writes:

“I went shopping at a major retailer in a mall with a friend of mine. We are young and he was being uncool and he took a cheap piece of jewelry for his girl and didn’t pay for it. He walked out and the alarms went off. He took off and security chased him while another one grabbed me in front of some nearby classmates. I hadn’t done anything. I told them to let me go and they told me to come with them and led me into a back room and told me to empty my pockets. I did, and I didn’t have anything stolen on me. They then told me to call my friend and get him to come back. I said no. They told me that they would call the police and tell them that I stole something.

I said I didn’t do anything and let me go. They said no and I walked to the door and a guard stepped between me and the door. After a while they called the store manager who came in. I explained that I had nothing to do with any theft and he told the guards to let me go. I feel they did me wrong. Do I have a case?”

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California Has Laws To Protect Your Gift Cards

Kim M. from Pacific Heights asks: “I want to get my daughter a gift card for the holiday, but I have heard that they have fees and expiration dates that can result in the card losing most or all its value. What is the law regarding these gift cards?”

Gift cards can be good for the retailer and the receiver. The receiver can take advantage of the after-Christmas sales to get more for his or her money, and the retailers get cash upfront without reducing inventory. These cards used to be more of a benefit for retailers, but the California Legislature, in combination with certain consumer-rights groups, has enacted legislation designed to protect consumers.

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What To Do When A Neighbor’s Yard Is Filled With Trash

Jim J from the Excelsior asks: “My neighbor died. She was such a nice lady I miss her and I also miss how she used to care for her yard. Her son inherited the place,he was never any good to her and was always trouble growing up. He hasn’t gotten any better with age. Since he moved in he has been “collecting things” mostly old cars but also tires, rims and other auto parts. He uses the garage to fix up old cars that he then sells. Most of the junk just stays there and rusts. It’s a scrap yard. Weeds are growing and I have seen rats running in and out. It’s disgusting. What can I do about it?”

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Is An Oral Promise Of A Gift An Enforceable Contract?

Giving back car keys

This week’s question comes from Shelia D in South City who asks: “I am really upset about what my uncle recently did. He had, since I was young, promised me that he would give me his Camaro when he got a new car. He got a new car and, instead of giving his old car to me, he gave it to his son who he just made up with after years of hating each other. I feel that the car should be mine. Can I do anything to get the car?”

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Proposition 64 Offers No Protections For Employees Who Use Marijuana

Proposition 64 and the employment law

This week’s question comes from James Q., in Orinda who asks; “I voted for the legalization marijuana in the last election. I want to know about what the rules are? How much can I have?  How much can I grow?  Can I be fired for smoking pot off the job?  I can drink while I’m not on duty.  Can I smoke or can they still drug test me and fire me?”

James, Proposition 64, officially known as the Control, Regulate and Tax Adult Use of Marijuana Act, is a complicated set of new regulations.  Many people assumed it simply authorized the sale and use of marijuana.  While that is true, there is much more to the law only a bit of which I can cover here.

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Need Time Off To Vote? California Voter Law Explained

California Time Off To Vote Law

 

Today, I will address a few questions that I have received by email or have been posted on the Dolan Law Firm’s Facebook page, and tell you about a scholarship program we have launched.

With the Presidential and statewide election set for next Tuesday, I have been asked how does California’s Time Off To Vote Law work.

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Are Robocalls To My Telephone Legal?

iStock_78040523_MEDIUM.jpg

This week’s question comes from Jane in San Francisco who writes: “I am pestered from 8 a.m. to 9 p.m. by “robocalls” that have no person on the line when I say hello even though I am on the “do not call list”. The numbers they call from are either blocked or not functional when I try to call them back. Help! Is this legal?

Jane, every reader of The Examiner, including myself, feels your frustration. These calls are not legal. Under the Telephone Consumer Protection Act (TCPA) and subsequent federal legislation, including the Do Not Call Implementation Act of 2003, “robocalls” or prerecorded telemarketing messages are illegal unless you have given the company written permission to call you. The prohibition also covers text messages to wireless numbers.

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