Friday, May 30, 2008

ASTC's 27th Annual Conference (June 5th-8th)

For those interested in networking with jury consultants, learning more about the business of jury consulting or just intrigued by the latest developments in jury selection consider stopping by the annual American Society of Trial Consultants (ASTC) conference next week in Chicago. The conference runs from June 5th-8th.

I have never been but from quickly scanning the program it appears that the conference will cover a wide range of topics from "Verbal and Non-Verbal Communication Training" to "Terrorism Defense and Post 9/11 Racial Bias." The hosts of the Conference, ASTC bills itself as a group of professionals who devote themselves to enhancing the effectiveness of legal advocacy.

ASTC has also recently announced the winner of its Bronson Dillehay Award for Research, Scholarship, and Education in Procedural Justice. This year's award was given to Professor Mimi Samuel for her research on Batson related issues. The results of Professor Samuel's research can be found in an upcoming article in the Brooklyn Law Review, Focus on Batson: Let the Cameras Roll. According to the article's abstract, courts should consider allowing cameras in the court to capture the non-verbal gestures of prospective jurors. This would allow appellate courts to more adequately determine the credibility of attorneys who alleged that they struck a juror because of some non-verbal gesture that the prospective juror may or may not have made.

Tuesday, May 27, 2008

Jury of Your (Juvenile) Peers

Generally speaking, minors in juvenile court proceedings aren't afforded the same constitutional guarantee of trial by jury that adults receive. (McKeiver v. Pennsylvania) The argument goes that minors, not facing adult charges, receive additional procedural protections at juvenile trial proceedings and their sentencing is allegedly based on rehabilitation not punishment. Thus, the need to provide them a jury trial is not as strong.

Those that are afforded a jury trial never face a jury of their peers because of age restrictions on who can serve as a juror. Some jurisdictions, however, are offering youthful offenders the opportunity to be judged and sentenced by their peers all of whom are below the age of eighteen. The articles highlighted below discuss various diversionary programs across the country that allow juveniles to judge and sentence other juveniles.

A Jury of Their Peers

Students Learn Justice in Teen Court

Peer Juries Reduce Suspension, Increase Attendance at Chicago Public Schools

No Hung Jury: Teen Court Makes Real Decisions

Youth Court Gives Offenders a Trial by Peer Experience

Apparently, these courts are quite successful at getting not only the defendants to learn from their mistakes, but also in educating minors about the importance of jury duty.

The reason we thought about it here is kids would listen to their peers more than they would listen to adults," said Saeed Saber, a youth court founder. "It would make more of an impact on their lives."

Kids and adults don’t listen to each other a lot of times, but when people the same age with the same mind tell you what’s up—it clicks.

Sunday, May 25, 2008

New Jury Scholarship

1. Stephan Landsman, Reflections on Juryphobia and Medical Malpractice Reform, 57 Depaul L. Rev. 221 (2008).

2. Neil Vidmar and Matthew W. Wolfe, Fairness Through Guidance: Jury Instructions on Punitive Damages After Philip Morris v. Williams, 2 Chas. L. Rev. 307 (2008).

Monday, May 19, 2008

Questions by Jurors

As most regular readers of this blog are aware, Florida recently changed its laws to allow jurors to ask questions (see here ). It appears, at least from media reports, that juror questioning, as used in several other jurisdictions, has improved the overall criminal trial process in Florida.

Prosecutors and defense attorneys in De Furia's courtroom say the process has improved the quality of the trials. Jurors say it clarified issues and made their decisions easier.

However, everyone in the Florida legal community does not necessarily agree with the changes. Apparently, many attorneys and judges are still reluctant to give up any aspect of control of the trial proceedings and thus have no interest in allowing jurors to ask questions. Even if those questions result in a more engaged and informed jury.

Other judges and attorneys have been skeptical of jury questions. Circuit Judge Diana Moreland in Manatee County said she asked attorneys, and "None of them were burning with desire" to have jurors ask questions.

Friday, May 16, 2008

Voluntary or Mandatory Jury Service

Here is a response to the jury reform efforts proposed for Gibraltar (for more background on this issue go here). The author appears to be in agreement with most of the proposals put forth by the government, save for the idea of making jury duty voluntary.

...the proposals, which envisage the possible replacement of compulsory jury service by a Voluntary Jury Pool are premature and ill-thought through.

The concept of voluntary juries, at least to me, raises a wide range of interesting issues. My first thought is would there be enough individuals willing to serve or would you have to imitate the military and start recruiting perspective jurors? As most are aware, many courts struggle to find enough jurors to serve. Some are going so far as to literally pound the pavement to find eligible jurors. Assuming that a sufficient number volunteer, would these volunteers improve the process?

Carrying the military analogy a little further, I note that when this country drafted soldiers, all of society, regardless of economic background, was represented in the ranks. Now, we have a military consisting of individuals primarily from the lower-end of the economic strata. However, these folks, for the most part, want to be there and thus arguably will do a better job than those that don't want to be in the military. The question now becomes, can the same be said about jurors who volunteer for jury duty? Also, will these volunteers be impartial as required by the 6th Amendment?

Wednesday, May 14, 2008

Removing Juror Restrictions

Following the growing trend of Common Law countries who want to expand the pool of eligible jurors, Ireland recently announced that it was lifting its age restriction on jurors 70 and older. According to the Irish Times who reported the story:

The Government has been urged to remove all discriminatory elements of the law governing who can serve on a jury after it announced that the upper age limit for jury service will be abolished.

The Times goes on to state that the government will also be looking to examine whether the ban against deaf jurors should remain. While there is no per se prohibition on deaf jurors serving in the U.S., it is still a rarity, as noted by this article in the Atlanta Journal Constitution. Fortunately, certain parts of the country are attempting to rectify this problem. For instance, New Jersey has issued guidelines for working with hearing impaired jurors.

As for Ireland removing its restrictions on older jurors, this should, among other things, increase the likelihood that Irish juries will better reflect the society from which they are drawn, especially a society where life expectancy is increasing.

Monday, May 12, 2008

Federal Magistrate Judges and Voir Dire

In probably one of the more under reported cases of the year (Gonzalez v. U.S.), the Supreme Court decided yesterday that Federal Magistrate Judges may oversee the voir dire process without obtaining the defendant's consent, so long as defense counsel has agreed to such action. Normally, voir dire is supervised by District Judges who fall under Article III.

Voting 8-1, the justices (Thomas dissenting) upheld the 5th Circuit's prior decision that Magistrate Judges need not obtain the defendant's prior consent to conduct voir dire if defense counsel has already agreed. This holding is in line with Peretz v. U.S. where the Supreme Court held that a defendant must object to a Magistrate Judge conducting voir dire in a felony trial. According to the lone dissenter in Gonzalez, the Peretz decision reaches an "erroneous conclusion" and is based on "flawed reasoning."

For the other justices deciding Gonzalez, the idea of requiring attorneys to get client approval for what they consider a tactical decision went too far. They also failed to see the fundamental importance (as argued by counsel representing Gonzalez) of having a judge with life time tenure versus one appointed for a term of years overseeing the voir dire process.

Here are the few links discussing the case

Controlling the Backseat Driver

Supreme Court Blog




Friday, May 9, 2008

New Jury Scholarship

Fairfax, Roger A. Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027-2073 (2008).

Mintz, Mark A. The Seventh Amendment and the CISG: Functional Factors in the Search for a Jury Trial Right, 6 DePaul Bus. & Com. L.J. 143-162 (2007).

Tuesday, May 6, 2008

Media Contacting Jurors

I have blogged about defense counsel and prosecutors contacting jurors and even blogged about jurors contacting defendants and prosecutors. However, it wasn't until the Wecht trial that I finally had the opportunity to highlight the media's interest in reaching out to jurors.

Yesterday, the Pittsburgh Post Gazette reported that:

"Several Pittsburgh media organizations filed an emergency motion with the 3rd U.S. Circuit Court of Appeals yesterday, asking that the names of jurors in the case against former Allegheny County Coroner Dr. Cyril H. Wecht be revealed by the district court..."

Saturday, May 3, 2008

Jurors Contacting Defendants

I have written several previous posts about attorneys contacting jurors post trial (some attorneys were successful, others were not). However, it is much more rare, although not unheard of, for jurors to contact defendants post trial. As this article explains, jurors who take such action are usually trying to ease the stress and guilt they feel for their decision to convict and the subsequent consequences that result. This article highlights the mental anguish suffered by one such juror and the steps he took to alleviate his concerns.

Obviously, defense counsel are very interested in speaking with remorseful jurors. However, that sometimes is easier said than done. According to the article, the Federal Court Rules in Alaska require the judge's permission before defense counsel may contact jurors. In comparison, there appears to be no similar limitations in place in Pennsylvania where FBI agents involved in the Wecht prosecution contacted former jurors despite the fact that the jurors' contact information was allegedly confidential.

Brief Notes

Regular readers of Juries may have noticed some changes to the layout of the blog. These modifications were made in an effort to make the blog more readable and less cluttered. Many of the links to permanent web sites have been moved to a new web page, All Things Jury. Hopefully, this will allow the blog to serve more of its intended purpose, i.e., as a repository for current or recent information.

Also, there are 2 new jury related law review articles.
1. Hill, Gerald P. Revisiting Juvenile Justice: The Requirement for Jury Trials in Juvenile Proceedings Under the 6th Amendment, 9 Fla. Coastal L. Rev. 143-177 (2008).
I note this issue of providing juveniles juries was recently addressed by the Washington Supreme Court, Washington v. Chavez.

2. Smith, Alisa and Saks, Michael, The Case for Overturning Williams v. Florida and the 6 Person Jury: History, Law and Empirical Evidence, 60 Fla. L. Rev. 441-470 (2008).