Thursday, November 29, 2012

Attorney or Client: Who Decides Jury Instructions?

In the state of New York, it is a "matter of strategy and tactics which ultimately rests with defense counsel." This was determined last month in People v. Colville.

The issue arose from the second degree murder trial of Delroy Colville. In that case, the defendant was charged with second degree murder. The defendant claimed self-defense.

The defense attorney wanted to give the jury instructions on two lesser included offenses: first and second degree manslaughter. However, the defendant opposed the instructions. Although the judge agreed with defense counsel, he followed the defendant's wishes and did not give the additional instructions to the jury.

The jury convicted the defendant and he appealed. The intermediate appellate division unanimously affirmed. However, the state high court overturned the conviction finding that "[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him."

Wednesday, November 28, 2012

Latest Edition of the Jury Expert

Here is the latest edition of the Jury Expert from the ASTC.

“Only the Guilty Would Confess to Crimes”
: Understanding the Mystery of False Confessions

by Douglas L. Keene, PhD and Rita R. Handrich, PhD of Keene Trial Consulting Why on earth would anyone, anywhere, ever confess to a serious crime they did not commit? Especially something like murder? Seriously? Our mock jurors find it hard to believe and, in truth, it ticks them off. Two trial consultants present the research on why people falsely confess and the cascade of errors presented by a false confession. Saul Kassin, Walter Katz, Karen Franklin and Larry Barksdale respond to this important paper.

False Confessions: “I Can’t Believe I Said That”

by Diane Wiley of National Jury Project
Given the skepticism as to why anyone would confess to serious crimes when they were innocent--it is important to know how to identify biases prior to seating jurors. Here's a supplemental jury questionnaire (SJQ) covering all the issues you need to address in a false confessions case.

Book Review: Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations

by Rita R. Handrich, PhD of Keene Trial Consulting
Here's a quick and thorough way to review the research on false confessions and learn a few things you didn't know before. Multiple areas are covered and you are sure to be surprised by some of the content!

Disability Wrongs-Disability Rights

by Steven E. Perkel, DSW, LCSW, of Archer Law and Paul J. Tobin, MSW and James Weisman, JD of the United Spinal Organization
This article is eye-opening. It recounts truthy biases about people with disabilities based on the pseudoscience of eugenics and how these biases were supported by laws and court rulings resulting in thousands of people undergoing involuntary sterilization. The article also describes how decisions continue to be made that put people with disabilities at risk.

Abstract Thinking Reduces Conservatives’ Prejudice Against Stigmatized Groups

by Jamie Luguri, Jaime Napier, PhD and John Dovidio, PhD all of Yale University
How does a conservative juror view a "non-normative" group member differently than a more liberal juror and what, if anything, can you do to change that view? New research out of Yale University tells us there may well be ways to modify pre-existing perspectives and James McGee and Charli Morris offer their thoughts as well.

Favorite Things: The Mona iPad Stand and Evernote

by Two ASTC Member Trial Consultants
Remember everything and practice more effectively, comfortably and attractively. How could these two not make our Favorite Thing lists?

Musings from the Deliberation Room: The Impact of Humor on Juror Decision-Making

by Jaime Bochantin, PhD of Tara Trask & Associates
A horse walks into a bar and the bartender says "Why the long face?". Okay. So we all find different things funny. This article looks at how humor helps and hinders the deliberative process (using examples from mock trial research) and gives pointers on how you can both assess and use juror humor style in voir dire decisions.

Media Exposure, Juror Decision-Making, and the Availability Heuristic

by Judith Platania, PhD of Roger Williams University and Jessica Crawford of the Milford, Massachusetts Police Department
How do the general bits and pieces of information about lawsuit damages jurors pick up from the media enter into the deliberation room? Jurors don't "set aside" that knowledge simply because they are told to do so--but you knew that. Take a look at how that pre-existing knowledge is related to verdict and damages.

Thursday, November 22, 2012

Judge vs. Jury in DUI Trials: You Might Want to Go with the Judge

If you were to take a poll of criminal defense attorneys 9 out of 10 would probably say that with all things being equal they would rather argue their case to a jury than a judge. For a variety of reasons, criminal defense attorneys generally prefer juries over judges. A recent study commissioned by the Supreme Judicial Court of Massachusetts, however, may change that line of thinking at least with respect to cases involving Driving Under the Influence (DUI). According to the study, criminal defendants in Massachusetts charged with a DUI received more acquittals from judges than juries.
Masslive.com: Massachusetts judges issue more acquittals in drunken-driving ...

Monday, November 19, 2012

Jury Nullification and Comparative Negligence: New Law Review Article

Eli Best and John J. Donohue, Jury Nullification in Modified Comparative Negligence Regimes, 79 U. Chi. L. Rev. 945

Abstract:
This paper analyzes jury findings from nearly one thousand negligence suits to determine whether juries in modified comparative negligence jurisdictions apportion percentages of negligence differently than juries in pure comparative negligence jurisdictions. We find that juries in modified comparative negligence jurisdictions are substantially less likely to find that a plaintiff was more than 50% negligent. This evidence of jury manipulation strengthens the case for pure comparative negligence, which we argue is already superior on theoretical and policy grounds.

Wednesday, November 14, 2012

How Not to Get Out of Jury Duty

If you are going to lie to the judge in order to avoid jury duty, it is probably not a good idea to brag about it on the radio. As discussed in the article below, a prospective juror in Denver, who appeared in court with mismatched shoes, curlers and smeared lipstick on her face, lied to a judge about having a mental illness in order to be excused from jury duty. Her lie was later uncovered when the judge heard a radio talk show in which this same juror bragged about faking PTSD in order to get out of serving on a jury. The judge tracked down the juror who was ultimately charged and convicted of perjury and attempting to influence a public official. The prospective juror was sentenced to probation and community service.

Interestingly, most people, like this prospective juror, dread jury duty because of stories they hear about it. But, after serving, most are quite happy about their experience.

Grand Junction Sentinel:'Crazy' Denver juror sentenced for lying to avoid jury duty

Tuesday, November 13, 2012

Civil Jury: New Law Review Article

Jason M. Solomon, The Political Puzzle of the Civil Jury, 61 Emory L. J. 1331 (2012)

Abstract:
At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.

In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.

I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.


Friday, November 9, 2012

Conway v. Arkansas (Juror Impartiality)

In Conway v. Arkansas, the Arkansas Supreme Court overturned the conviction of Samuel Lee Conway. Mr. Conway had been convicted of five counts of capital murder, two counts of aggravated residential burglary, and four counts of theft of property. He had also been sentenced to five life terms without parole and two additional life terms plus ninety years.

The Arkansas high court overturned the defendant's conviction based on a juror note. During Conway's trial, a juror sent the judge the following note: I don't think I can be a fair juror anymore

The judge brought the juror into chambers and the following colloquy took place:

THE PROSECUTOR: Now, do you think that once instructed at the end of this trial that you can render a fair and impartial verdict based on the evidence that you've heard from the witness stand from the exhibits you have seen?
JUROR SHEETS: I don't think so, sir. In my mind, I've made up my choice.
DEFENSE COUNSEL: [S]o you're saying that you don't believe your [sic] fair and impartial right now?
JUROR SHEETS: Not to him, sir.
DEFENSE COUNSEL: [Your] statement for this record [is] that you don't feel like you could be a fair and impartial juror?
JUROR SHEETS: No, sir.
DEFENSE COUNSEL: You don't feel like you could deliberate?
JUROR SHEETS: No, sir.
DEFENSE COUNSEL: You're done?
JUROR SHEETS: I think I'm pretty much solid on this one.

Even after this colloquy, the trial judge surprisingly denied the defendant's motion to dismiss the juror. Instead the judge stated the following:

I'm not gonna excuse him because I don't think that he's expressed anything other than the fact he has formed an opinion, which you have acknowledged jurors do then they go in and discuss it. If he reported that he refuses to deliberate once – if he is seated, once the case is submitted, that is another matter. But I do not think that anybody can sit through three days of testimony and not begin the formation of an opinion. That's just contrary to human nature and I think our process envisions that as the evidence is presented a juror assimilates it . . . . You know, and I appreciate your dilemma, that you've been informed that a jury has ben [sic] swayed by the State's evidence. But that doesn't disqualify 'em [sic] as a juror.