A juror’s responsibility is to pay attention, retain information and participate in jury deliberations. Does that conflict with some members of the venire? The percentage of Americans taking medication is rising and lawyers have begun asking potential jurors what kinds of medication they are actually taking. In fact, Science Daily cited a study from Boston University's Slone Epidemiology Center finding that in a given week, over 10 million Americans are taking opioids.
Of course, asking a jury whether or not they are on medication could be a death knell for a trial lawyer. You risk upsetting the judge and looking terrible in the eyes of jurors. Also, some judges maybe reluctant to allow such personal questions to be asked of potential jurors as it could be in direct conflict with the privacy provisions of the Health Insurance Portability and Accountability Act.
I think it could be very important to find out if a juror is taking a medication. Moreover, you want to know what they are taking. If a juror is taking some type of anti-depressant or mood changing medication, it could impact their ability to stay awake and alert during an extended trial. Some jurors, without any fault of their own, fall asleep during trials due to the medications they are taking. I believe lawyers have a right to know anything that can conceivably affect their client’s case.
I think the prudent course of action would be to ask a juror in some type of juror questionnaire or in open court, “are you taking any type of medication?” If the answer is yes, that issue should be addressed in a side bar, outside the presence of the other jurors. I believe this line of questioning could be appropriate in many types of cases. I am concerned about any juror who may be taking some type of anti-psychotic medication or some other medication that would be make them drowsy during a trial. The side effects of some drugs can interfere with the jurors’ ability to sit and concentrate during a trial. With the commercialization of many of these drugs and without many knowing the side effects, this line of questioning should be appropriate for a jury trial.
For additional information on this topic see the recent National Law Journal article, "What's Your Juror Taking?"
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ARE JURORS TAKING MEDICATIONS INTERFERING WITH JURY SERVICE?
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