I am interested in the law surrounding jurors. During juror selection (voir dire) a potential jurors can be asked questions to determine their suitability to serve on the jury. Is it ever legal for a juror to refuse to answer any question? Could one, for example, "plead the fifth"?


1 Answer 1


Yes, there are cases where refusing to respond to the question would be legal. The juror could plead the fifth – so long as he hasn't spilled the beans about what he is trying to protect – which provides for the protection from compelled self-incrimination (any incriminating statement that could be used against you in a criminal charge – civil liability doesn't count here). Anything that is said in voir dire is on the record and under oath. You are effectively witnessing against yourself. As stated on NOLO:

Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings).

. . .

If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse.

There has to be evidence, though, that testimony would subject you to criminal charges. "What is your hair color?" obviously cannot subject you to criminal charges. "Have you ever driven while intoxicated?" Would only be incriminating while the Statute of Limitations has not passed. After that point, you have not 5th amendment protections for having driven under the influence because it will no longer subject you to criminal charges.

Additionally, there are cases in which you could refuse to answer but the court could still compel you to answer. For instance, sometimes questions in voir dire get very personal. If jurors believe a question is too personal, they can try to refuse to answer on those grounds, let the judge know, and the judge would make the decision. If the judge decides they must answer, and they continued to refuse, the judge could hold them in contempt.

On a slightly more practical note, if you are objecting to questions, it will impact whether the attorneys on either side will allow you to stay on as a juror. After an objection to a specific question, the attorney may just decide to nix you.

  • Do you have sources for this?
    – Mark
    Jun 26, 2015 at 19:28
  • I am working on it. I'm also clerking this semester so a little busy 9-5ish. Try to get on during breaks. I will update with sources this evening.
    – Andrew
    Jun 26, 2015 at 19:31
  • Right now the answer is still unclear: Does the juror have to satisfy the judge that his answer could be criminally incriminating, up to and even including providing the incriminating information to the judge, to avoid being held in contempt? Or is pleading the fifth a safe harbor? I'm having a hard time imagining any information that couldn't (or even hasn't) been used against a defendant in some criminal trial, sometime, somewhere, or hypothetically -- even information as basic as name, age, residence, natural hair color, etc.
    – feetwet
    Jun 26, 2015 at 19:49
  • The ambiguity is inherent in the system. Each Judge is different and will require different levels of information depending on how many cups of coffee s/he has yet to drink.... Is the goal to not go to jail or to maintain your rights? That is two different things. . I think I clarified in response to the second half of your comment. AND this question is not just about incriminating evidence. It is also about any other reason a person might try to get around answering a question.
    – Andrew
    Jun 26, 2015 at 19:51
  • If the "right" only exists at the whim of the judge, then wouldn't it be correct to say, "No, a juror does not have protection from self-incrimination. But a nice judge might not make him choose between contempt and self-incrimination." If the right does exist, then presumably the law would exclude anything a juror says (under protest) during voir dire from use in a criminal trial.
    – feetwet
    Jun 26, 2015 at 19:57

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