For you legal types, I have a question: During voir dire, can a prospective juror be asked if he/she is homosexual? What if the case has a homosexual “element” to it, such as discrimination or perhaps assault where the victim is claiming they were attacked because they are homosexual?
What would happen if a prospective juror refused to answer? Could the issue of jury nullification be a factor?
The . . . er. . . seminal case of Batson v. Kentucky comes to mind. In Batson, the Court ruled that even “free” peremptory juror challenges could not be exercised in an effort to deprive the accused of a racially mixed jury. Subsequent decisions have extended the principle to other classifications, applied the guarantee to the defense as well as the prosecution, and so without research I’d opine that voir dire could explore bias against (or in favor) of gays, it probably could not directly ask about a juror’s orientation.
So if either side actually asked a juror this question, what would likely happen? Objection by the other side, sustained by the judge?
If somehow that didn’t happen, and the juror refused to answer, can anything happen to the juror for that refusal? Other than possibly being dismissed from consideration as a possible juror, that is.
In general, can jurors refuse to answer legitimate voir dire questions without legal penalty? Would this be a potentially effective strategy for getting out of jury duty (if one were so inclined)? The scenario I am imagining has the potential juror declining to answer a large range of questions, and getting dismissed either for cause or peremptorily, and suffering no legal penalty. Or would contempt of court come into play?
For the record, I have always wished to be picked for more juries but I hardly ever even get called, let alone picked. So the above questions are of academic interest only.
Sounds right. I never saw an attorney ask a prospective juror about their sexual orientation in my years in the courtroom as a judge’s assistant, and I can only imagine watching the jaws drop if one ever did. Based on those years of experience, my conjecture is that there would be an immediate objection by the opposing side and a quick, terse sidebar discussion. The objection would be sustained, and then no more questions like that would be asked.
Even if there was some weird precedent that allowed it (which I don’t think there is, based on thinking similar to Bricker’s), attorneys aren’t eager to alienate prospective jurors who may end up hearing their case. I’ve seen PJs sneer in the general direction of a lawyer for insinuating a bias for far less than that.
(IANAL.)
It certainly comes up from time to time, for example when a juror is asked what their spouse does for a living, or when they mention their “boyfriend” or “girlfriend.”
But I agree with the others, I’ve never felt the need to ask, nor have I ever seen any one ask that question (to the best of my memory). I can imagine cases where you’d have to explore juror attitudes about gay plaintiffs (or defendants) or witnesses. You don’t have to ask the juror about his or her orientation to get to those issues.