Sunday, August 31, 2014

Juries in the Caribbean

The most recent edition of the Economist has an interesting article about juries in the Caribbean entitled 12 Clueless Men.  According to the article, some of the smaller countries in the Caribbean that adhere to the common law system are moving towards abolishing criminal juries. While this article is definitely anti-jury, it does highlight some of the concerns that arise when countries rely on lay persons to decide difficult issues like guilt or innocence.

Economist: 12 Clueless Men

“WE simply cannot carry on the way we are going,” says Trinidad and Tobago’s chief justice, Ivor Archie. Along with other reforms, he wants to abolish the jury system, a hallowed cornerstone of English common law for almost 800 years and exported to Britain’s former colonies in the Caribbean. Juries, he argues, slow trials down, making them last up to a year, and clog his country’s courts. Clogged they certainly are. More than 500 jailed murder suspects await trial.

To continue reading the article go here.

h/tip Scott Malouf

Friday, August 29, 2014

Deputy Allegedly Criticizes Jurors for Verdict

First it was judges then attorneys and now apparently even courtroom deputies feel the need to criticize jurors for their verdicts.

Minneapolis Star Tribune: Deputy's scolding of jury sparks investigation in Hennepin Co.

Thursday, August 28, 2014

Latest Edition of the Jury Expert

Here is a list and brief description of the articles in the latest edition of the Jury Expert which is published by the American Society of Trial Consultants.

Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse

Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and how our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If It Feels Bad to Me, It’s Wrong for You: The Role of Emotions in Evaluating Harmful Acts

Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury

Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry

Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristi√°n Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Favorite Thing: Mind Map

We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases

Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom

Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection

Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.


New political labels, a new word (prehabilitation) and new ways to think about many things

This issue we are all about voir dire (from multiple directions) and presenting your case in court. Political labels, novel defenses, behavioral mimicry, moral reactivity, game theory, neuro-imagery, 'prehabilitation' and more!

Wednesday, August 27, 2014

Unbundling Criminal Trial Rights

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs. To read the entire article go here.

Tuesday, August 26, 2014

Another Brief Filed in Warger v. Shauers

The American Association for Justice has filed a brief in support of the respondent in Warger v. Shauers.

Brief for the American Association for Justice in Support of Respondent

This case arose out of a motor vehicle accident in which a motorcyclists collided with a truck.  The motorcyclist-plaintiff lost his leg and then subsequently brought a negligence action against the truck driver.  The jury found in favor of the truck driver-defendant

Shortly after the trial, a juror approached plaintiff's counsel and informed him that one juror, the forewoman, refused to decide the case on the evidence submitted.  This juror further informed plaintiff's counsel that the forewoman told other jurors during deliberations that her daughter had been at fault in a fatal automobile accident and that had she been sued it would have "ruined her life."

Plaintiff's counsel had the juror complete a sworn affidavit in which he detailed the actions of the forewoman.  However, the trial court, citing 606(b), refused to admit the affidavit into evidence. The court of appeals affirmed the trial court's decision.

Generally speaking, FRE 606(b), the juror anti-impeachment rule, prohibits the introduction of evidence concerning juror deliberations. FRE 606(b), is in place to: (1) provide verdict finality; (2) encourage jurors to freely express themselves during deliberations; and (3) reduce the amount of post-trial hounding jurors receive from attorneys.  The Courts of Appeal, however, have not been uniform in their application of FRE 606(b) which is why this case has been granted cert.  Hopefully, the SCT can provide the lower courts better guidance on the application of FRE 606(b).

To read an earlier post on this case or other briefs go here.

Monday, August 25, 2014

Juries, Social Norms, and Civil Justice

                                                                Jason M. Solomon


At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.

First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.

In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.

Sunday, August 24, 2014

Jury Updates for Boston Marathon Bombing Trial

Not surprisingly, defense counsel for Dzhokhar Tsarnaev, who is charged with the Boston Marathon bombing, has filed a motion to change the venue for the upcoming death penalty trial. To read the motion go here. To read the government's response go here. Also, last week defense counsel challenged the procedures by which jurors are selected in federal court in Massachusetts. To access that motion go here. Finally, to access the proposed juror questionnaire go here.