Today’s post was inspired by an email from Marcus, who asks “what would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”
As Marcus points out, this is more of a problem for some superheroes than others. For example, Peter Parker often photographs Spider-Man in action, so he couldn’t serve as a juror in such a case, since he would be a potential witness. But what about a case he didn’t cover as a photographer? And what about other superheroes like Batman who generally maintain significant distance from their secret identities? To set the scene here, let’s talk a little about jury trials and the jury selection process.
I. Jury Trials
Unlike most of the world, the United States is big on jury trials for both criminal and civil cases. The Sixth Amendment gives criminal defendants the right to a trial by jury, though not all criminal charges qualify. “Petty offenses” (i.e. misdemeanors with a maximum penalty of six months imprisonment) don’t qualify for a jury, at least under the federal Constitution. Duncan v. Louisiana, 391 U.S. 145 (1968). So superheroes who bust only very small time crooks wouldn’t have so much to worry about, but most superheroes go after serious criminals.
A defendant could also waive his or her right to a jury trial, but most criminal defendants don’t do that. That is, they often waive their right to a trial entirely by a plea bargain, but if they do go to trial they usually go with a jury rather than a bench trial conducted by the judge alone.
The Seventh Amendment gives the right to a jury trial in civil cases, but that right is more limited than the Sixth Amendment right.
II. The Jury Selection Process
So, now that a jury has been called for, how do they get picked? The answer is: it’s complicated and varies from jurisdiction to jurisdiction, but most states are modeled after the federal system. Under the Federal Jury Selection and Service Act of 1968, each district court must develop a jury selection plan, which must
(1) either establish a jury commission (consisting of one citizen and the clerk of the court) or authorize the clerk to manage the jury selection process;
(2) specify whether the names of prospective jurors are to be selected from voter registration lists or the lists of actual voters of the political subdivisions within the district or division, and prescribe other sources when necessary to achieve the objectives stated above;
(3) specify procedures for selecting names from those sources designed to ensure that each political subdivision is substantially proportionally represented in the master jury wheel;
(4) provide for a master jury wheel into which the names of at least one-half of one per cent of the names on the source lists are placed;
(5) specify those groups of persons or occupational classes whose members shall on individual request be excused from jury service because such service would entail undue hardship or extreme inconvenience;
(6) specify that active members of the armed forces, members of fire or police departments, and members of the executive, legislative or judicial branches of government who are actively engaged in the performance of official duties are barred from jury service on the ground that they are exempt;
(7) fix the distance beyond which jurors shall on individual request be excused from jury service on the ground of undue hardship in traveling to where court is held;
(8) fix the time when the names drawn from the jury wheel shall be disclosed to the parties and to the public; and
(9) specify the procedure for assigning persons whose names have been drawn from the jury wheel to jury panels.
Wayne R. LaFave et al., 6 Crim. Proc. § 22.2(a) (3d ed.).
Already we can see a couple of potential ways out for our superheroes. First, they can decide not to register to vote, although that’s not very heroic, and it may not help if the district supplements the jury rolls with driver’s license records, utility company lists, and other sources.
Alternatively, superheroes could live and register to vote in a different district than the one they fight crime in. For example, supposing Gotham is actually New York City, then if Wayne Manor were located on eastern Long Island then it would be in the Eastern District of New York rather than the Southern District, which is where the city is (here’s a map). Thus, Bruce Wayne wouldn’t get called for jury duty in the Southern District, and presumably there are a lot fewer supervillains on the eastern half of Long Island than in the city, so the odds of him getting called up for a supervillain case in the Eastern District are slim. Alternatively, if Gotham is in New Jersey, then Wayne Manor could be in New York, or vice versa. A similar approach can work for state courts.
Of course, this depends on cooperative geography and having enough money and resources to “commute to work,” so to speak. Another possibility is to have an exempt occupation. The federal courts exempt active duty armed forces, professional fire and police departments, and full-time public officers of federal, state, and local governments. State jury exemptions vary, but most are similar to the federal ones. Historically there were exemptions for attorneys, doctors, and other occupations, but those have mostly been done away with, which eliminates most of the easy outs for superheroes. Most superheroes can’t juggle being a superhero with being an active member of the armed forces, a full-time cop or firefighter, or a full-time public officer, so this route probably won’t work.
As a last resort, a superhero (or in this case more likely a super-antihero) could intentionally incur a felony conviction. Most states and the federal government permanently exclude convicted felons from serving on juries. Obviously this is a drastic step, and very few superheroes would do such a thing just to avoid the possibility of jury duty, but some superheroes may have secret identities that have run afoul of the law already for other reasons, and they may not have to worry about jury duty, depending on where they live. For the record, we do not recommend this approach, even to fictional characters.
But assuming our superhero hasn’t avoided being selected in the first place, what do they do once they’re called up?
III. Summoned for Jury Duty. Now What?
At this point, we’re afraid there isn’t much to be done. The superhero could try to plead hardship or inconvenience (e.g. by claiming that they are needed at work or by feigning illness), but that often results in a delay rather than an exception. They could refuse to show up, but that’s a good way to get fined or worse, which hardly seems very heroic.
They do have one last way out, and that’s the voir dire process. Voir dire is the process by which the parties (e.g. the prosecution and the defense) ask prospective jurors questions and, optionally, eliminate them. Each side gets a certain number of “peremptory” challenges, which are prospective jurors they can dismiss for whatever reason they like. After that they can challenge an unlimited number of prospective jurors “for cause,” but each challenge for cause requires the assent of the judge. Exactly what constitutes adequate grounds is beyond the scope of this post, but it’s usually cases of serious bias (e.g. a belief that the defendant is guilty until proven innocent) or a refusal to follow the law (e.g. would refuse to find the defendant guilty even if the case was proven beyond a reasonable doubt).
If our superhero has an honestly held belief that might get them tossed out, then that could work. The problem is that most superheroes clearly believe in the justice system, at least in theory. They could lie, but again that doesn’t seem very heroic, and it’s a crime anyway, since prospective jurors are put under oath. One possibility is to raise the point that they don’t believe that the police are capable of handling crime effectively. This is clearly true, or else why would they be a superhero? And it may show sufficient bias against the police that the superhero would get tossed out of the jury pool.
Avoiding jury duty is difficult, even for a superhero. Some may be able to avoid it by separating where they live and where they “work,” but those who do get called up may find it very tricky to get out of it. Faced with a situation in which their secret identity may be called as a witness in the same case, feigning illness might be the least bad option. The result would probably be a delay rather than an exception, but hopefully lightning wouldn’t strike twice.