Tuesday, September 30, 2008

Plumbing the Internet for Juror Information

Interesting article about trial consultants using the Internet to find information about prospective jurors.

Jury Duty? You May Want to Edit Your Online Profile
"We're really getting an opportunity to find out where the skeletons are hidden," says trial consultant Marshall Hennington, regarding jurors who seem inscrutable in the courtroom.
Trial consultants increasingly use the Internet to learn about prospective jurors, including how they vote, how they spend money and if they've spoken out on controversial issues...

Monday, September 29, 2008

Juror Questionnaires in South Dakota

The South Dakota Supreme Court is the latest state court (see also Nevada) to take on the issue of public access to juror questionnaires. Apparently, SD, unlike its northern neighbor ND, is taking a much more restrictive approach to releasing juror questionnaires. Starting November 1st, SD courts will presume that juror questionnaires are not releasable absent approval by the trial judge. Not surprisingly, media outlets in SD are not pleased with this decision.

SD High Court Closes Off Jury Records to Media
SIOUX FALLS, S.D. – The South Dakota Supreme Court has decided that records created during jury selection should not be available to the public unless the trial judge says otherwise.
Presiding circuit judges proposed the change over concerns about identity theft and the potential that someone would embarrass jurors by distributing their answers to sensitive questions...

Sunday, September 28, 2008

Jurors Point Out Flaws

Legalese and Lack of Written Directions Make Deliberations Difficult
Jurors in two recent York County homicide cases were upset to learn their verdicts did not carry the penalties they thought best fit the crimes. In one case, some jurors felt the sentence was too lenient; in the other, too severe. After both cases, jurors raised the issue of how they were instructed on the criminal charges and what information they were not allowed to take into the jury room as problematic.

In Pennsylvania, jurors are not to be aware of the seriousness of a crime beyond what is presented to them in court. They are not advised whether a specific charge is a felony or a misdemeanor. And the law forbids informing jurors of penalties, except in death penalty cases. TV shows that throw around phrases such as "25 to life" and "Class D felony" -- terms not found in the Pennsylvania crimes code -- add to the confusion, local attorneys say...

Saturday, September 27, 2008

The 7th Circuit Bar Looks to Help Juries

7th Circuit American Jury Project
Last week, the Bar Association of the 7th Circuit Court of Appeals released the results of a 3-year study or pilot project in which 7 "new" reform proposals (listed below), previously recommended by the ABA, were tested for effectiveness in 50 Civil jury trials. I emphasize the word "new" because many of these concepts have or are currently used across the country. For the most part, those who participated in the study found that the 7 proposals, especially the first 2, improved the overall trial process.

1. Questions posed by jurors (this concept has been previously discussed here)

2. Providing jurors preliminary jury instructions

3. Limiting attorney presentations

4. Using 12 person juries

5. Allowing counsel to make interim statements to the jury between witnesses during the evidence phase of the trial

6. Having jurors fill out questionnaires for the jury selection process

7. Providing jurors with guidance about how to conduct their deliberations.

Friday, September 26, 2008

Jurors and Legal Terms

The article below discusses the difficulties that some jurors have with applying terms like "beyond a reasonable doubt."

'Presumed Innocent' A Real-Life Test for Robinson Jurors
Concepts that make good conversation over dinner or at cocktail parties become stark realities for those who are taking seats in the jury box for the capital murder trial of Elgin Ray Robinson Jr. They may walk into the court room having heard phrases such as "innocent until proven guilty," but many who have come in for questioning during jury selection this week told lawyers that the Robinson trial has forced them to think about it beyond the buzzwords...

Thursday, September 25, 2008

6th Circuit Finds Systemic Exclusion

Smith v. Berguis
Yesterday, a three judge panel in the 6th Circuit Court of Appeals determined that the jury selection process used in Kent County, Michigan systematically excluded black jurors. Specifically, the court found that the process used in Kent County (a process now abandoned) to create the venire panels deprived defendants of their 6th Amendment right to a "jury drawn from a fair cross-section of the community." The panel's decision overturns a prior Michigan Supreme Court ruling which had failed to find systemic exclusion.

For more information about the court's ruling click on the article below or read the case

Dispute over all-white jury leads to new trial

Wednesday, September 24, 2008

Australian Juries

The article below highlights some of the jury issues confronting the Australian judicial system.

Jury Room Saboteurs
In one Sydney trial last June, a jury was discharged after up to four of its members were found solving sudoku puzzles instead of weighing evidence. Another NSW trial had to be aborted and started from scratch last month after claims that a juror rang a radio journalist to complain about a fellow juror bullying them to visit the crime scene...

Given the legislative veil of secrecy that obscures the identity and workings of juries, little is known about what exactly goes on within the wood-panelled antechambers of the nation's courtrooms. But the recent conduct of some good men and women with the task of deciding between guilt and innocence has led to renewed questioning of the jury process...

Limiting a juror's use of the internet is a logical extension of the standard practice of judges telling juries to avoid case reports in newspapers and other media. A more difficult question is why some jurors are going against the direct instructions of judges and placing multimillion-dollar trials in jeopardy...

Monday, September 22, 2008

How to Stop Jurors From Conducting Online Research

Here is an article about a judge in New Zealand who was so fearful of jurors conducting online research that he prevented the media from using the defendants' name or image on the internet. Thankfully, the judge reversed course.

Trust Now Back With Jurors
Judge David Harvey has backed down on his ban on the names and images of two men accused of murder appearing on the internet. Initially he allowed the media to identify Nathan Williams and Daniel Tumata in newspapers and on radio and television but banned any internet references because of "the viral effect of digital publication". ..

Sunday, September 21, 2008

Update on OJ Juror Questionnaire

As some may recall, Judge Glass who is handling the OJ trial has refused to release the completed juror questionnaires to the public. However, she has released a copy of the questionnaire itself. Not surprisingly, her ruling has bothered several media outlets who are in the process of challenging the ruling in the Nevada court system (previously discussed here). The article below, which is written by one of the plaintiffs and includes a few of the sample juror questions, criticizes the judge for her failure to release the completed questionnaires.

What's Next? Hooded Jurors?
At the rate we are going, our American juries are going to look like South American drug trials, the jury box packed with a dozen black-hooded jurors to conceal their identity and prevent retaliation.

What retaliation might be anticipated in the robbery and kidnapping trial of O.J. Simpson is speculation best left the knife-sharp wits of the late-night television talk show hosts.

Nonetheless, Judge Jackie Glass has virtually shrouded the jurors in the case. In her Decorum Order, she dictated, "No party, counsel, representative of the media, or member of the public shall publish in any way the name or address of any juror or prospective juror, nor a likeness of any juror or prospective juror, in a manner that discloses or may disclose the identity of that person."

The rationale we are given is that in such a high-profile case someone might use juror identification to attempt to taint the jury in some vague, unspecified way. That, of course, is against the law and can result in serious jail time....

Among the questions asked of potential jurors:
-- 24. What civic, social, religious, charitable, volunteer, professional or business organizations do you belong to?
-- 26. Who is your favorite public person?
-- 30. Which newspapers and magazines, if any, do you subscribe to and/or read on a regular basis?
-- 54. What is your opinion of criminal defense attorneys?
-- 55. What is your opinion of prosecuting attorneys?
-- 88. Have you, your spouse or domestic partner, or any family members, friends or co-workers ever had your picture taken with O.J. Simpson?
-- 91. Were you a fan of the Buffalo Bills football team in the years when O.J. Simpson played for them?
-- 106. Will you follow the law, as given to you by the court, even though it may differ from your concept of what the law should be? (Jury nullification is a topic for another day.)
-- 107. Do you think the news media always report the truth? (I object!)...

Friday, September 19, 2008

Scottish Juries

Although part of the United Kingdom, Scotland has its own legal system which has many unique features not seen in other Common Law countries. For example, Scotland utilizes a 15-person jury and allows for verdicts of: Not Guilty, Guilty and Not Proven (previously discussed here). The article below talks about upcoming changes to Scotland's unique system.

Proposals to Review Jury System

A public consultation on options for modernising Scotland's jury system was launched today. The consultation document outlines Scottish Government plans to:

Allow Scots aged 65-70 to serve on trial juries
Reduce jury service exemption period from 5 to 2 years for those called to attend court as potential jurors but are not subsequently balloted to serve on a trial jury

It also seeks views on longer term options for reform, including:

Whether the current jury size of 15 for criminal trials should be maintained or reduced
Whether existing rules on exemptions from jury service, for example for certain categories of profession, remain appropriate or should be changed
Options for administrative changes to the scope and operation of juror allowances, aimed at minimising hardship whilst recognising overall constraints on public expenditure
Options around the possible use of tribunals of judges or substitute jurors...

See also
Juries face axe under radical court reforms
JURIES could be scrapped for long-running and complex fraud and murder trials under reforms being considered by ministers.
Jury service age limit could be raised to 70
Proposals to review jury system in Scotland

Thursday, September 18, 2008

The Less Educated Are More Likely to Serve on Juries

Here is an interesting article that discusses some of the "gamesmanship" that occurs during jury selection. The article also highlights an interesting correlation between education and jury service. Apparently, the more post-secondary education you have, the less likely you will end up serving on a jury.

Excuse Me, Your Honor, The Dog Ate My Civic Duty
On a recent weekday morning in downtown Manhattan, 100 New Yorkers were given sobering news: They might have to serve as jurors in a three-week trial.

Groans echoed in the cavernous jury assembly room. Excuses flew. One woman couldn't serve, she explained, because she had a vacation scheduled in two weeks. A college graduate said she was unemployed and available, but how would she have time to interview for jobs? A doctor, dressed strategically in scrubs, discussed a new training program...

Jury duty is like the speed limit: We know we're supposed to honor it, but we try to skirt it anyway. Businesspeople and professionals are some of the worst offenders, believing they are too busy to serve, especially on long trials. For a system that shapes defendants' fortunes and lives, and depends on fairness and balance, there's a whole lot of gaming going on.

The gamesmanship extends to lawyers, who winnow out prospective jurors they think will decide against them, and lobbyists, who try to shape the jury pool by influencing states' selection methods. And it is all based on assumptions that look shrewd and often turn out to be wrong...

Wednesday, September 17, 2008

Law Enforcement Officers Serving as Jurors

The article below from the UK raises an interesting question about whether individuals who work in law enforcement or with the judiciary should be exempted from jury service.

Police Jurors Are a Threat to Fair Trials, senior Judges Warn
Police officers should not be allowed to sit on juries because of the danger they pose to the fairness of trials, senior members of the judiciary say. The criticism by four senior Crown Court judges sitting in England and Wales follows a shake-up of the criminal justice system five years ago in which reforms were introduced to stop the middle classes evading jury service. Before the change, police officers, judges, defence lawyers and prosecutors were exempt from serving on juries...

Tuesday, September 16, 2008

Do You Listen to the John and Ken Show?

This is one of the questions found on the 12-page questionnaire provided to prospective jurors of the Carona federal corruption trial. As some of you may recall, John and Ken are two radio personalities in Southern California who were so bothered by the activities of ex-Orange County Sheriff Michael S. Carona that they attempted through their radio program to persuade potential jurors that the sheriff was guilty and that he ought to be convicted. In fact, the two ran a daily segment called, “Taint the Carona Jury Pool.”

For more information about the trial go here

For more information about John and Ken's efforts see below

Have media outlets like "The John and Ken Show" influenced ...

The John and Ken Show » Today’s News

'John and Ken Show' has Carona seeking to move trial - Los Angeles ...

Monday, September 15, 2008

Opt-In Jury Service: Should Your State Adopt It?

When Jury Duty Becomes a Burden
Fran Best of Mount Pleasant won't be voting in November, partly because she revoked her registration to minimize her chance of getting called for jury duty. Best has been summoned 10 times in the past 13 years by assorted municipal, county and federal courts, and she has grown weary.

"My parents brought me up to be a 'good citizen,' " she said. "But when it comes to the point when you basically become a professional juror? If you get picked to go this often, you're going to go in with an attitude."

After her third summons arrived, she began collecting them and questioning why she was getting called so often. She seldom got more than a vague answer...

One possible remedy to this problem is for South Carolina to follow the lead of other states and exempt jurors from jury duty if they have already served in the past three years.

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.

Sunday, September 14, 2008

Swearing in the Jury

As discussed here and here, Baltimore juries have been in the news lately. Many feel that their conviction rates are too low, especially in comparison to nearby surrouding counties. One study conducted by the Abell Foundation has gone so far as to suggest expanding the Baltimore city jury pool to include potential jurors from nearby surrounding counties. As the article below illustrates, reformers interested in obtaining higher conviction rates may want to look beyond merely expanding the jury pool.

Court Nullifies Conviction; Jurors Not Given Oath

Maryland's highest court has ordered a new trial for a Baltimore man convicted of vehicular manslaughter, because the jury that found him guilty had not been sworn in.
Thirty-year-old Chester Harris was convicted of the November, 2003, hit-and-run death of Michael Edwards. The Court of Appeals concluded that retired Baltimore Judge Thomas Ward sent the jurors to lunch on the first day of Harris' trial without swearing them in, which was also noted by a clerk in a docket entry. The high court ruled the jury was not legally constituted and the verdict is invalid.

Saturday, September 13, 2008

Juries in Canada, Russia and the UK

Justice Denied
Being tried by a jury of one's peers is a cornerstone of democratic justice. Allegations that natives in Northern Ontario are denied that basic right could seriously erode the reputation of the provincial court system.

A coalition of native groups is asking Ontario's attorney general to investigate whether natives in northern Ontario have been "systematically excluded" from jury duty. The request follows the appearance of an affidavit suggesting that the federal department of Indian and Northern Affairs has not been making band electoral lists available to court officials. As a result, only a small number of people on the jury rolls include native people, even though Northern Ontario is home to dozens of bands.

Moscow Government Wants to Hand Pick Juries

Moscow's city government is pushing for federal legislation to give major Russian cities the authority to hand pick juries for trials, officials and lawyers said Friday.
The proposal is the latest indication that the authority and independence of juries in Russia is eroding, less than 20 years after the restoration of jury trials. It was unclear how the proposal would fare if parliament takes it up. The proposal is "a profanity on the very idea of jurors," defense lawyer Viktor Parshutkin said.

A Jury's Right to be Unpredictable

The right of a jury to return its own verdict against the run of the evidence and in the face of the facts was first established at the famous trial of two Quakers, William Penn and William Mead, more than 350 years ago. In their case the judge ordered the 12 jurors to convict the defendants of "unlawful and tumultuous assembly" for preaching on a Sunday afternoon in the City of London.

Thursday, September 11, 2008

Juror Privacy in CA

Names of Jurors Are Private Unless a Judge Agrees to Release Them
(interesting question and answer information provided by the San Jose Mercury News)

Q A few years ago, I served on a jury that ultimately convicted the defendant. The court recently sent me a notice saying the defense lawyer now wants to obtain personal information on each juror, including our name and address. I refused to cooperate. Is this legal? If so, who would ever serve on a jury knowing their identities won't be protected?

--Name withheld by request

A Defense lawyers do have the right to ask for such information — but you have the right to refuse. Such requests are not uncommon among lawyers and members of the news media.
California Code of Civil Procedure Section 237 protects the identities and locations of jurors who wish to remain anonymous. In order for your identity to be turned over to the defense, the law requires a hearing in which a judge would need to find a compelling reason to do so. The letter you received says such a hearing has been scheduled.

As a matter of procedure, jurors' identities are sealed after a verdict is rendered. But any person may file a petition for access to those records. You made the correct move by protesting the release of your information. The law says such protests shall be upheld if the judge decides the petitioner failed to show good cause, there is compelling interest against disclosure (such as the threat of physical harm), or if the juror is unwilling to be contacted for any reason. If the defense is successful, judges can require the information not be revealed to others, or otherwise limit the information in any manner deemed appropriate.

Juror Questionnaires--Will NV follow ND?

Juror questionnaires have once again come to the public's attention with the on-going selection of the current OJ jury. Today, Clark County District Court Judge Jackie Glass ruled in a four-page order that that she won't release any completed juror questionnaires. Several news agencies covering the trial had previously requested that the judge release the questionnaires. According to Judge Glass, she promised prospective jurors that their answers would be “kept in confidence, under seal.”

Judge in OJ Simpson case in Las Vegas denies request to release ...

OJ trial judge won't release jury questionnaires

OJ judge denies access to jury questionnaire

Apparently, the news agencies plan to appeal to the Nevada Supreme Court and may be successful based on recent decisions in other state supreme courts. For example, the North Dakota Supreme Court faced very similar issues when it decided Forum Communications Company v. The Honorable John T. Paulson.

In Forum Communications Company, the plaintiff, a media outlet, wanted to learn the last names of the jurors of the Moe Gibbs murder trial and gain access to their in depth questionnaires (37 pages). However, the trial court wanted to keep this information private to protect the privacy of the jurors. Relying extensively on Press Enterprise v. Superior Court, the ND Supreme Court ultimately agreed with the plaintiff about the last names. As for the questionnaires, the case was sent back to the lower court so that it could reexamine whether sufficient cause existed to withhold such information.

Writing in a concurring opinion, Chief Justice Gerald W. VandeWalle highlighted one potential future problem that may arise with the release of such information.

In an effort to "reasonably" protect the privacy of prospective jurors the district court, in future cases, may be unwilling to allow such an "expanded" jury questionnaire. While counsel or the self-represented party may ask those questions during voir dire in open court, it is problematic that they will ask each juror 34 pages of questions during that time or that the district judge will allow that depth of questioning in view of the court's responsibility to reasonably protect the juror's privacy. Thus the agreement to keep the questionnaires confidential has some logical purpose.

As for the issue of trial judges promising jurors confidentiality that was also addressed in the opinion.

We suggest that these expanded jury questionnaires be accompanied, such as was done in this case, by a paragraph that states in unambiguous language that the questionnaires will become public records and, as an alternative to writing in sensitive personal data to a question, jurors can respond to the question by requesting a closed appearance before the judge with counsel and the accused present.

But, as pointed out by the ND Chief Justice, will this caveat really improve the overall process or make it worse? Personally speaking, I don't think it encourages juror truth-telling.

Wednesday, September 10, 2008

Volunteering for Jury Service

This letter to the editor discusses a topic previously raised on this blog--volunteer jurors. Currently, several states use or plan to use a modified version of volunteer or opt-in jury service. While there is a potential that a jury consisting of volunteers will not resemble a cross-section of the community, there are many upsides to the concept.

State Should Accept Volunteers for Jury Duty
...So why is it that Wisconsin does not accept volunteers for jury duty? Many citizens who have never been called would be eager and honored to serve, yet there is no provision for them to do so of their own volition.The principal grounds for prohibiting volunteers is the risk of people being "planted" on certain juries to affect the outcome of a trial. It is a valid point, yet with a little creativity and minimum effort, this obstacle is easily overcome. Volunteer jurors could opt to serve within a broad time frame -- say, six months -- which would eliminate the possibility of their being selected for a particular case....

Tuesday, September 9, 2008

Informing Defendants About Questions Raised By Jurors

The 7th Circuit Court of Appeals recently ruled in Crockett v. Hulick that the trial court did not act unreasonably when it did not inform petitioner about a question posed by the jury during deliberations; and the correct standard of proof was applied on appeal with regard to the issue of harmless error.

During Hulick's trial, the jury sent a note to the judge requesting a definition of "abet." The trial judge did not inform defense counsel of the request or respond to the note before the jury returned its verdict. Even after the verdict, trial counsel was not told about the note but found it while reviewing the record.

Monday, September 8, 2008

Michigan Jury Reforms

St. Joe court to Try Out Jury Reforms

St. Joseph County Circuit Court is one of 12 courts in the state that will try a new way of providing jurors information before and during trials. Changes that may be tried include allowing jurors to ask questions of witnesses directly, giving preliminary instructions in writing to each juror and encouraging attorneys to provide jurors with a reference document to use during a trial...

Sunday, September 7, 2008

Jury Report Released

Baltimore Juries

As previously discussed here, the Abell Foundation has released its report on Baltimore juries and how they can be improved.

Saturday, September 6, 2008

CSI effect: Not guilty!

Study Conducted on Impact of CSI on Jurors

Working with Michael Saks, an ASU professor of law and psychology, Schweitzer found that respondents who watched CSI-type shows were more skeptical of the forensic hair analysis than those who didn’t. They also claimed a greater understanding of forensic science and greater confidence in their verdicts. But they weren’t more or less likely to convict...

Friday, September 5, 2008

Jury Conference--Oct 24th

Successful Strategies for Jury Trials

The Lambert conference blends academic research with practical trial strategies bringing together top defense and plaintiff attorneys. This practical conference provides a clear and concise analysis of every stage of the jury trial with practices and procedures specific to Massachusetts as well as other jurisdictions. Policymakers and academics will be interested in learning about the future of the jury and practical ways to improve how juries function.

Date: Friday, October 24, 2008
Location: Suffolk University Law School, 120 Tremont St., Boston, MA
Time: 09:00 AM - 05:00 PM
FacultySchedule/AgendaRegistration Information

Wednesday, September 3, 2008

September is Juror Appreciation Month in Wisconsin

Thanks Jury, There’s Justice
September is Juror Appreciation Month in Wisconsin. The purpose is to recognize citizens statewide who have answered the call and performed jury duty, and to highlight the honor and importance of serving on a jury...

60,000 Thank You's
About 60,000 reported to courthouses across Wisconsin when summoned for jury duty in 2007.
About 20,000 people served as a juror in one of 2,429 trials. The state, the State Bar and the Wisconsin Supreme Court want to thank you who have served. September is jury appreciation month and circuit courts throughout the state are participating in a variety of events intended to thank jurors and to recognize the critical role they play...

Wisconsin Launches Juror Appreciation Program
The verdict is in, and it’s unanimous among Wisconsin’s three branches of government: September is juror appreciation month. To mark the occasion, Gov. Jim Doyle has issued a proclamation, and the Senate and Assembly each have approved citations in honor of jurors.

Tuesday, September 2, 2008

New Jury Scholarship

Allan Kanner and M. Ryan Casey, Daubert and the Disappearing Jury Trial, 69 U. Pitt. L. Rev. 281-329 (2007).

Andrea D. Lyon, But He Doesn't Look Retarded: Capital Jury Selection for the Mentally Retarded Client Not Excluded After Atkins v. Virginia, 57 DePaul L. Rev. 701-719 (2008).

Marla Sandys, Alan Trahan and Heather Pruss, Taking Account of the "Diminished Capacities of the Retarded": Are Capitol Juries Up to the Task, 57 DePaul L. Rev. 679-700 (2008).

Monday, September 1, 2008

The Media's Right to Juror Information

Newspaper Continues Fighting for Public Access to Court Info
Today, an update on an important open records issue The Forum has been battling for some time on behalf of the public. On July 7, the North Dakota Supreme Court issued a supervisory writ that determined state courts must disclose to the public the names of jurors and most of the questions they answer when selected. It also established a procedure for doing so.