Monday, December 31, 2007

Power of the Petition

Historically, grand juries were employed as a check on governmental power. As such, they had broad authority to convene, investigate and indict individuals or entities on their own. Over time, with the evolution of our legal system, the power held by grand jurors (citizens in the community) was ceded to the prosecutor and judge. Some states, not wanting to completely shut out citizens from the process of calling a grand jury, created an exception that allows the convening of a grand jury based on petition. If enough citizens, usually 2% of the electorate in the county, signed a petition then a grand jury can be convened.

Previously, I blogged about how the power of petition could be politicized. Here is an article that talks about a grand jury petition filed to investigate the local sheriff's office. I suspect that this is the type of petition envisioned by the drafters of the carve out provision--going after public officials whose position might otherwise deter a grand jury investigation.

Saturday, December 29, 2007

Anonymous Juries

Recently, the Judge, in U.S. v. Wecht, ruled that the names and addresses of potential jurors would not be made public. The judge based his decision on "unprecedented media coverage of the trial." Dr. Wecht, the local county coroner, is facing numerous corruption charges (this case is a long running saga that has already received the attention of both Congress and the 3rd Circuit). The judge's ruling, which is being appealed to the 3rd Circuit by several local news outlets, was not the product of a motion filed by either the defense or the government.

As discussed here, there are various levels of anonymity that can be employed by the Court. In deciding to impanel an anonymous jury, the Court must strike a proper balance between juror safety and the rights of the media and the defendant. The measures used in the Wecht case appear to be at the mid-level range because only the attorneys get the information, albeit in a limited format.

It remains to be seen whether the judge's ruling will stand. As a general rule, anonymous juries are extremely rare and used most often in cases involving organized crime or very dangerous street level defendants. For example, an anonymous jury was used during the Gotti trial.

More information about the legal standards for using anonymous jurors can be found at this link. For further discussion about the Wecht case itself see the following links:

Feds plan to drop 43 counts in Wecht fraud case
Prosecutor cuts Wecht case in half
Media challenge juror secrecy in Wecht case

Thursday, December 27, 2007

New Jury Laws in TN and FL

Here are two articles discussing upcoming changes to how jurors are selected and provided information at trial. While some of the changes are minor like in Tennessee where they are eliminating automatic juror disqualification for habitual drunkards, others like those in Florida are far more significant. Following in the footsteps of several other state and federal courts, Florida is now allowing jurors to both take notes and ask questions of witnesses.

This doesn't necessarily mean that jurors can now cross-examine witnesses or blurt out spontaneously a question they feel must be answered. Rather, the general practice (in jurisdictions that allow juror questioning) has been to allow jurors after cross and direct examination of a witness to write down any additional questions they might have of the witness. The bailiff hands these questions to the judge who conducts a side bar with opposing counsel to determine if either objects to these questions being asked.

In the instances where I saw the practice employed, it was beneficial to all involved. Jurors seemed more interested and vested in the proceedings and sometimes hit upon important issues that both sides had failed to cover. These additional questions alerted the attorneys to areas that needed further discussion.

Those against allowing juror questioning fear that jurors will ask inappropriate questions or draw adverse inferences if certain questions are not answered. For example, a juror wants to know why the defendant doesn't testify or whether he has a prior record. These concerns can be minimized somewhat by an initial instruction by the judge to the jury informing them that certain questions because of the Rules of Evidence and Constitutional concerns cannot be answered.

Wednesday, December 26, 2007

Jury Consultant Part II

Previously, I blogged about jury consultants here--discussing some of the techniques that they use. This second article contains an interview with a jury consultant in Texas who was a former practicing attorney. The interview highlights how consultants can be helpful in certain cases. Also, the consultant draws an important distinction between understanding the demographics of the city/county and the demographics of juries. The consultant illustrates this point by citing Houston juries where Latinos, despite making up a significant portion of the population, are underrepresented while Caucasians are overrepresented.

Monday, December 24, 2007

Illegal Alien Jurors



With approximately 12 million illegal aliens (depending on which count you use) living in the U.S., it is highly likely that a few will be called to serve on jury duty, especially with states looking ever creatively to expand their jury rolls. The Las Vegas Sun reports on one such effort in the state of Nevada. On the recommendation of its Supreme Court, Nevada has now added electric bills as another source of information to pull names for jury duty. However, unlike voter rolls and driver licenses, illegal aliens are also included on these electric bill lists (this could also be said for the other two lists as well, but in fewer numbers). This article here discusses the Catch 22 many illegal aliens find themselves in when they receive a jury summons. Because of their illegal status, they cannot serve on the jury. But, how do they convey that message to the judge without incriminating themselves? Failure to reply to a jury summons could land them in jail.

Although most if not all states (like the federal government) require jurors to be citizens, a case is not automatically reversed if an illegal alien serves on a jury. Instead, courts generally look to see whether the juror concealed the information and if the juror was able to properly perform his duties impartially and intelligently. Another more interesting question is why not allow illegal aliens to serve on juries? If a county or city is made up of a large percentage of illegal aliens shouldn't the defendant be judged by his actual peers? Also, some have floated the idea of giving certain controversial or high profile cases to foreign jurors to ensure fairness and impartiality.

Sunday, December 23, 2007

Guilty, Not Guilty, Not Proven

As most know, the criminal jury has the choice of "guilty" or "not guilty." However, in Scotland, juries, which are made up of 15 jurors and do not require unanimity, have the additional choice of "not proven" or as it is also known that "bastard verdict."

This article discusses the "not proven" verdict and whether other jurisdictions should adopt it. Obviously, there are numerous implications to consider when deciding whether such a verdict could work in the U.S. For example, should double jeopardy apply to "not proven" verdicts? Would the public have been more comfortable with the OJ verdict had the jury come back with a "not proven" verdict?

I think the "not proven" verdict would aid jurors in their decision making but would infringe on the traditional rights of the defendant without certain additional safeguards. I would be interested to hear from others as to whether they would be for or against a "not proven" verdict.

Friday, December 21, 2007

Grand Jury Legal Advisor

The Johnson County Grand Jury saga has taken another interesting twist. As most will recall, this is the grand jury that has been empanelled to investigate Planned Parenthood (and previously discussed here). According to the Kansas City Star, the 15-person grand jury has requested its own legal counsel. As a general rule, the district attorney or Assistant U.S. Attorney serves as legal counsel for grand juries. However, some states do allow the appointment of independent counsel if the grand jurors request one which is the case here. Also, the state of Hawaii actually provides all state grand juries with legal counsel regardless of whether a request is made.

I have long been a strong proponent for giving grand juries their own legal counsel. Having the prosecutor as the legal advisor creates the potential for a conflict and prevents the grand jury from truly acting independently. Grand juries need and want a neutral person to give them legal advice. While I am somewhat suspect of the motivations of the Johnson County Grand Jury, I am glad to see that the state of Kansas allows and the judge has granted the request by the grand jurors. The only remaining question is why the judge felt it necessary to appoint two individuals to serve as independent counsel.

Thursday, December 20, 2007

Jury Size

Earlier this week, the N.Y. Court of Appeals upheld the use of 11 person juries in People v. Gajadhar. In Gajadhar, the defendant waived (which had been allowed in civil cases) his right to a 12 person jury after one of his jurors became sick during deliberations. Unlike other parts of the country, NY, until Gajadhar, had rigidly abide by the 12 person jury since 1858.

In contrast, the Supreme Court, since 1970, has recognized juries composed of less than 12 jurors Williams v. Florida. In fact, the Supreme Court has allowed juries consisting of 6 jurors; however, this required that they reach a 6-0 (unanimous) verdict Burch v Louisiana. Despite these precedents, the dissent in Gajadhar wrote that "[a] defendant exercising the right to a trial by jury must be tried by a panel of twelve, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding..." 30 years earlier, however, the Supreme Court in Williams determined that while the Common Law might call for 12 jurors "there is absolutely no indication in the intent of the Framers' of an explicit decision to equate the constitutional and common-law characteristics of the jury."

There have been numerous studies that overwhelmingly show that larger juries perform better. Here is just a brief sampling of what those studies discovered with respect to reducing jury size: (1) less likely members will make critical contributions; (2) fewer jurors to remember important pieces of evidence; (3) less likely to overcome group biases; and (4) decreased accuracy in verdicts. While I don't think the aforementioned problems will necessarily occur by reducing the jury by one, there is the potential for future problems if the jury continues to shrink.

The NY Law Journal has written about Gajadhar and the case itself offers an interesting history on jury size.

Wednesday, December 19, 2007

Jury Consultants

Here is an article that examines the work of jury consultants. Some question the value of such consultants because of the lack of information provided by jurors during the voir dire. The argument goes that the recommendations made by the consultants are far from scientific and basically nothing more than "hunches." However, others, especially those involved in high stakes litigation, feel almost compelled to rely on consultants to pick jurors.

In this particular article, the author and jury consultant relies on a survey "that quantifies opinions about the case and cross-tabulates these opinions against the demographics and lifestyle attributes of the respondents....[o]pinions about the case (utilizing the 'litmus test' question as the key variable) are then cross-tabulated against the demographic and lifestyle variables to gain insight into which juror profiles would be more likely to be favorable (or unfavorable) toward your case." This information is then used during the voir dire process to "rank" the potential jurors and prioritize "keepers" and "strikes."

While the survey process is generally quicker and less expensive than having the lawyer present her argument to a focus group, it further removes the human element from the trial. For example, how does a particular lawyer or witness come across to the jury? Obviously, this question is better answered by a mock jury that actually sees and hears the lawyer in action.

One interesting question is whether the jury consulting business will continue to flourish if the Supreme Court decides to abolish peremptory challenges.

Monday, December 17, 2007

Communicating with the GJ foreman

Even those with little knowledge about the grand jury know that it is conducted in secret. Recently, a councilman in South Carolina had his home raided and computers seized by state agents looking for unlawful communications between him and a Greenville County Grand Jury foreman. The councilman had previously testified before the grand jury prior to the raid. The state now believes that the councilman may be either leaking grand jury information or illegally communicating with grand jurors. The leaking allegation may be difficult to prove as witnesses appearing before the grand jury may discuss the testimony that they provided.

As for the unlawful communication, grand jurors, unlike petit jurors, generally have much more leeway in relying on personal knowledge when conducting investigations and probable cause determinations. Some have argued that this is why grand juries are generally larger than petit juries. However, courts have generally frowned upon grand jurors receiving information individually and not through regular sworn testimony, which appears to be the allegation here.

Saturday, December 15, 2007

Jurors and PTSD

According to a report from the CBC, PTSD is not limited to those who have witnessed a traumatic event while serving in the military. The CBC has an article discussing whether some of the Pickton jurors (a topic previously discussed) may be suffering from PTSD. The roots of their stress come from not only the gruesome testimony presented at trial, but also the pressure of deliberations. The latter point is exacerbated by the fact that while Canadian jurors, like American jurors, can talk about the actual trial, they cannot reveal information about the actual jury deliberations, unlike in the U.S. Thus, the Canadian court has offered debriefing sessions to provide jurors with someone to talk to about their experiences.

Thursday, December 13, 2007

Abolish Peremptory Challenges.

According to an op-ed in the LA Times, the U.S. should follow Justice Breyer's advice and abolish peremptory challenges. Race, juries and peremptory challenges have all received renewed attention because of Snyder v. Louisiana which is currently before the U.S. Supreme Court. In Snyder, the petitioner alleges that the prosecutor used his peremptory challenges to exclude Black jurors. In addition, this same prosecutor referenced the OJ trial ("got away with it") in order to allegedly incite the all-White jury.

As discussed previously, proving racial intent (to support a Batson claim) in the exercise of peremptory challenges can be difficult. According to Justice Breyer, "the use of race-and gender based stereotypes in the jury selection process seems better organized and more systemized than ever before."

Thus, the question becomes is the answer to simply eliminate peremptory challenges all together as England did in 1988? I would be interested in hearing from others as to whether our legal system is better or worse off with peremptory challenges. Many believe that peremptory challenges help ensure that the verdict is acceptable to the parties involved. Further, these folks don't believe that challenges for cause are sufficient in removing partial jurors. To them, peremptory challenges serve as a second filter that screens out suspected, but unprovable bias. Yet, what happens when this unprovable bias is based on a racial or gender stereotype?

Tuesday, December 11, 2007

Dual Juries

For most, the idea of two juries in one courtroom seems unnatural and a violation of the defendant's due process and or 6th Amendment rights. Despite being disfavored by some courts, they have been upheld since 1972 (U.S. v. Sidman). Dual juries are generally used in trials with multiple defendants. For example, if defendant A has made an admission or confession implicating co-defendants B and C (Bruton problem) then only A's jury should hear his admission. However, rather than try A separately from B and C and expend more time and resources the judge can impanel two juries simultaneously. When A's admission is introduced, the judge momentarily excuses the jury considering the fate of B and C.

Dual juries greatly benefit the prosecution by having co-defendants tried together. Furthermore, they allow judges to resolve cases more expeditiously. As for the defense, dual juries decrease the likelihood that jurors will be tainted by media coverage of successive trials. However, there is a risk, as discussed in the Observer-Dispatch, that the excused jury will somehow learn about the admission.

Sunday, December 9, 2007

Foreign Jurors

Here is an article that discusses the universal problem of jury duty avoidance and how it leads to the "dumbing down" of the jury system. It is interesting to see how other countries, in this case Trinidad and Tobago, provide jury service exemptions for certain professions. Apparently, in Trinidad and Tobago the employer (depending on the industry) makes the decision on whether an employee performs jury service.

This article also raises an idea that has been kicked around previously in the academic arena, foreign jurors--giving a whole new notion to the idea of a jury of your peers. The concept was promoted, at least in the article, as a way to deal with sensitive criminal trials. I am interested to hear what others think about using foreign jurors. This country has historically relied on a change of venue as a way to deal with sensitive trials. This has been met with both positive (less tainted jury) and negative results (LA riots after a Simi Valley jury acquitted the law enforcement officers who attacked Rodney King).

Investigative GJs

Earlier this week, I posted on a movement afoot in North Carolina to expand the powers of investigate GJs. As you will recall, NC limits state investigatory GJs to situations involving drug conspiracies. According to some, this hinders the state's ability to investigate people like former DA Mike Nifong. In that post, I mentioned possible downsides of investigate GJs. Most noticeable was the ability of some to abuse the process to promote their own political agenda.


According to the Kansas City Star, a GJ will be seated in Johnson County, Kansas, on December 10th, to investigate an abortion clinic. This GJ was called because of a petition drive (Kansas is one of the few states that allow GJs to be called by petition) led by anti-abortion foes like Life is for Everyone (LIFE). While I am not saying that there are no grounds for this investigative GJ, I am saying that one has to question somewhat the motivations and purpose behind it.

Saturday, December 8, 2007

Canadian Jurors

Lately, jury deliberations have been on the minds of many Canadians as the Pickton trial jurors enter into their ninth day of deliberation. Robert Pickton, the former pig farmer and Canada's most notorious serial killer, is facing six counts of first-degree murder. The longer his jurors deliberate the more the Canadian media seems to focus on the jury process.

One article on the issue discusses juror confusion. Like the U.S., Canadian jurors have difficulty applying the evidence presented to the applicable law. This is due to a variety of factors such as convoluted jury instructions, unfamiliarity with the law, inability to ask questions during trial and a desire by jurors to solve the mystery. One suggestion has been to provide jurors with a brief legal orientation or mini-law school.

Another article, which quotes Gordon Rose, who has been studying jury comprehension for many years, identifies three phases of jury deliberation: orientation, evidence and verdict. According to Mr. Rose, "verdict-driven juries tend to produce quicker decisions and evidence-driven juries tend to produce decisions jurors are happier with."

Jury Duty

The Virginia Pilot reports on some of the more noteworthy excuses proffered by would be jurors who don't want to serve "...didn't want to be away from her dog all day." The article goes on to highlight an extreme example of jury duty avoidance and the repercussions that can occur. Most people understand the importance of jury duty and those who don't simply give the judge or attorneys answers that they know will prevent them from serving.

Friday, December 7, 2007

Investigative GJs for NC

BlueRidgeNow discusses the call for expanding the North Carolina grand jury system. According to the article, investigative grand juries in NC are used only for drug conspiracies. This is in stark contrast to federal grand juries that can both adjudicate and investigate regardless of the nature of the allegations, which is why the grand jury has been referred to as both the "sword and shield."

This lack of investigatory power has come to light because of the state's interest in investigating Mike Nifong who was the DA responsible for the Duke Lacrosse rape case that floundered. Apparently, the feds have passed on convening a federal grand jury to look into Nifong's actions leaving the state somewhat flatfooted and with limited options absent filing charges. There are, however, definite downsides to allowing investigatory grand juries. The most obvious is that they can be very dangerous in the hands of those who would use them for political purposes.

Thursday, December 6, 2007

GJ Leaks

The Union Tribune has an article discussing alleged leaks by the federal government of grand jury information. This case stems from the fallout of the Congressman Duke Cunningham bribery scandal of 2005. One of the defense contractors accused of bribing Cunningham, Brent Wilkes was recently convicted at trial. Wilkes argued that his conviction should be overturned or his indictment dismissed because of illegal leaks of grand jury information.

As most are aware, grand jury information may only be revealed in limited situations and failure to keep grand jury information confidential can lead to criminal prosecution. However, it is quite often very difficult to track down who is responsible for the leak. Thus, Wilkes' defense attorneys attempted to subpoena 20 reporters and government agents to find out who leaked the information. This subpoena was rejected because the judge determined that the leaks while improper "had no material affect on the verdict."

The judge's decision demonstrates the difficulty most defendants have in overturning a trial verdict based on grand jury improprieties. This also demonstrates why defendants need to make all grand jury motions prior to the start of trial.

Judge's effort to empanel a GJ thwarted

In an interesting twist, the Arkansas Supreme Court has stepped in to prevent a state District Circuit Judge from empanelling a special grand jury to investigate the shooting death of a 12 year old boy by the police. Apparently, the District Judge was unsatisfied with the investigation conducted by the special prosecutors. However, the Arkansas Supreme Court denied the District Circuit Judge's request for fear of setting a bad precedent. More information about this issue can be found in the Arkansas Democrat Gazette

One interesting question raised by the judge's actions is the relationship between the Judiciary (or individual judge) and grand juries.

Wednesday, December 5, 2007

Batson Challenge and OJ

Slate ran an interesting article yesterday about Snyder v. Louisiana, which was recently heard before the high court. In Snyder, the petitioner alleges that the prosecutor used his peremptory challenges to exclude Black jurors. In addition, this same prosecutor referenced the OJ trial ("got away with it") in order to allegedly incite the all-White jury. The article discusses the difficulties with making a Batson claim by highlighting the pointed questions addressed to petitioner's counsel, Stephen B. Bright.

Initial Post and Disclaimer

This blog discusses, examines and analyzes how juries function. The blog, geared towards criminal juries, does not focus on specific verdicts but rather interesting and new developments in the world of juries, e.g., jury reform movements. Nothing in this blog should be perceived or relied on as legal advice. Those seeking or needing legal advice should contact competent counsel.

--TH