Wednesday, June 25, 2008

MSU's Trial Practice Institute

Here is a press release discussing cutting edge interdisciplinary work on juries conducted at Michigan State University's Fieger Trial Practice Institute. To date, they have produced works on jury decision making to include nullification.

Tuesday, June 24, 2008

New Scholarship on Juries

1. Michael Antonio, See No Evil, Hear No Evil: An Argument for a Jury Determination of the Enmund/Tison Culpability Factors in Capital Felony Murder Cases, 27 St. Louis U. Pub. L. Rev. 235-264 (2007).

2. Ethan Leib, A Comparison of Criminal Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629-644 (2008).

3. Right to Trial by Jury (People v. Gajadhar), 24 Touro L. Rev. 351-367 (2008).

Sunday, June 15, 2008

Hurricane Katrina and Jurors

Today, the New Orleans' newspaper, Times-Picayune has an article (Jefferson Parish Juries Going Soft?) on the local criminal jury conviction rates. According to the article, the rates (save for 2006) are far lower than pre-Hurricane Katrina. However, the overall rate of convictions by jury and judge as well as guilty pleas has remained steady at 88% to 89%.

81% 2007

93% 2006

82% 2005

88% 2004

The article goes on to discuss possible factors for the the lower rates (surprisingly, demographics is not one of them).

1. The loss of veteran prosecutors in the DA's office

2. Greater tolerance by jurors

3. The CSI effect

4. Cyclical patterns

5. Witnesses no longer in the local area

6. Witness intimidation

What I find most interesting about this article is the notion of an optimum conviction rate for criminal trials. Who sets this rate and what is too high or too low? In Japan for instance, the prosecution, which relies heavily on confessions, has a 99% conviction rate. Arguably, this was one reason for the return, after a 65-year absence, of jury trials to Japan. The same might be said for South Korea. In contrast, does an arguably low conviction rate of 73% (Gibraltar) constitute a need to curtail or reform the jury?

While I think very high or very low jury conviction rates (whatever they may be) need to be examined, they alone should never lead to changes in the jury process because of the many variables involved in rendering a verdict.

Thursday, June 12, 2008

Jury News

1. Bored Jurors
Juries who behave badly are just relieving the boredom
Few answers to trial fatigue

2. Raising Juror Pay in PA
Time for a Raise

3. Facebook Group Could Taint Jury Pool
Could they derail justice?

4. Underrepresented Latino Jurors (Previously discussed here)
Lawsuit Thrown Out Over Underrepresented Latino Jurors

5. Allegations of Improper Contact with Jury Foreman and Non-Juror
Lawyers for 3 ask judge to look at talk in ’93 trial

6. Listening in on Juror Conversations
Parties in Ky. fraud case eavesdropping

Tuesday, June 10, 2008

Re-empowering Juries

Yesterday, Professor Charles Nesson held a workshop at Harvard Law School entitled "Re-empowering Juries." A link to the workshop and the paper presented by Professor Nesson can be found here.

The point of Professor Nesson's presentation is that:

there is more to "law" than legalism. There is justice, grounded in the hearts of the jurors as the collective conscience of the people, central to the jury's function of judging the whole case.

Professor Nesson goes on to demonstrate this concept by examining Commonwealth v. Hebert, 379 Mass 752 (1980). In Hebert, a juror's conscience led her to believe at least initially that the defendant was not guilty. After being polled and discussing her doubts with the judge, the juror changed her vote to guilty. Professor Nesson uses the Hebert case and other examples to support a model jury instruction that contains the following language:

In addition to statutory violation, a defendant’s act, to be a crime, must be an offense to the safety and tranquility of our community that, in your judgment, as the conscience of our community, warrants your verdict of criminal guilt.

Coincidentally, Anne Reed at Deliberations also has a recent post about polling jurors and what it can reveal.

Saturday, June 7, 2008

Jury News

Juries, Celebrities and Drugs

Juries should decide if celebrities took drugs, says Met chief
Met Chief in Kate Moss drugs storm
Celebrities filmed taking drugs should be prosecuted, says Met ...
Put drugs stars on trial says top cop
Vermont Judge Says Law Prevents Attorney from Questioning Jurors

Judge: Rooney Lawyer Can't Question Juror
Rooney will seek new trial, lawyer says
On line in New Jersey

New online service helps prospective NJ jurors
Juror Faces Perjury Charges

Lake Co. juror could face perjury charge

Friday, June 6, 2008

Opt-In Jury Service

Connecticut has a new law (Public Act 08-103) taking effect later this year that will modify how its citizens serve on juries (for more background information on CT jury laws go here). Starting 1 October, CT residents who have previously served at least one day of jury duty will automatically be exempted from serving for the next three years, unless they specifically opt-in to the summoning process.

This idea of opt-in jury service raises several interesting issues. First, will this deprive defendants of their 6th Amendment right to an impartial jury. An impartial jury generally means one chosen from a cross section of the community. For example, in Taylor v. Louisiana, 419 U. S. 522 (1975) the Supreme Court Court stated that "[t]he purpose of a jury is to guard against the exercise of arbitrary power to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor....This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace."

Arguably, this is exactly what CT is doing. Rather than rely on random selection it is allowing individuals to approach the state to perform jury service, which is fine if a cross-section of the community volunteers. However, that scenario is unlikely. Instead, it is much more likely that only certain individuals from society will volunteer, e.g., retirees or those who are unemployed, which also brings me to my second point. Will these volunteers make better jurors?

As previously discussed, there are numerous pros and cons to having voluntary rather than mandatory jury service. One aspect that I did not touch upon in the last post is whether those who volunteer will be more biased. While some people view jury service as a civic responsibility, others see it as an opportunity to right a wrong and or gain publicity from being associated with some high profile case. Thus, I am led to wonder whether we need a heightened voir dire standard for those who volunteer.

Tuesday, June 3, 2008

Judge vs. Jury Voir Dire (Entwistle)

As most are aware, there is an ongoing debate over whether defendants can receive a fair trial with judge conducted voir dire. Many believe that attorney conducted voir dire is the only way to seat an impartial jury. However, with attorney conducted voir dire comes longer trials and significant probing into the minds of jurors. This debate has resurfaced this week with the empanelling of jurors for the Neil Entswistle trial. Mr. Entwistle, an Englishman living in Massachusetts, is accused of shooting to death his wife and nine month old baby. And as one might expect with details like this, the case has garnered significant publicity both here and in England.

Neil Entwistle circus begins Boston Herald
British man Neil Entwistle charged with shooting his wife and baby ...
Father driven by debt, porn, court to hear National Post

In addition to claiming that the media has tainted the jury pool, Mr. Entwistle's attorney, Elliot Weinstein has argued that the judge in the case is not asking the right questions. Unlike many other states, Massachusetts allows the judge to question the jurors. Attorneys may submit proposed questions, however, the judge is not required to use them. According to Attorney Kevin Mahoney who is blogging about the case, "[i]n Massachusetts, voir dire is not a tool, but a hoax. Like an apparition, it only gives the appearance of substance."

The defendant's attorney is unhappy because he wants the judge to explore the attitudes of potential jurors with respect to individuals who use the Internet to surf for sex. According to Mr. Weinstein, "I don't know if we can overcome the problem, because we're not in charge of the questions."

With this all said, we now arrive at our question of the week. Who should conduct voir dire? If not attorneys, should judges be required to at least ask some of the questions posed by attorneys?