Wednesday, January 30, 2013

Monday, January 28, 2013

The Civil Jury as a Teaching Tool for Understanding the Right to Bear Arms: New Law Review Article

Darrell Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, Yale Law Journal, Vol. 122, No. 4, 2013

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly

This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.

Monday, January 21, 2013

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender. To do otherwise would be a violation of Batson and its progeny. At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.
The federal government may soon follow suit if Congresswoman Susan Davis has her way. She has introduced legislation (Juror Non-Discrimination Act) in the U.S. House of Representatives that will prohibit attorneys from striking potential federal jurors because of their sexual orientation or gender identity. Similar legislation was introduced in the last Congress without success.

According to Congresswoman Davis, “Serving on a jury is one of America’s most cherished civic duties. It is unjust to exclude a particular group of people from participating in civil society because of whom they love or what they look like. The federal government already prohibits juror discrimination on the basis of race, color, religion, sex, national origin, and economic status and as we pursue greater equality for all Americans, I believe LGBT Americans should be also be free from juror discrimination.”

Those in favor of extending Batson to sexual orientation argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation

Friday, January 18, 2013

The Civil Jury as a Political Institution: Feb 22-23

William and Mary Law School is hosting a symposium on the Civil Jury as a Political Institution on Feb 22-23. To register for the symposium go here.

Symposium Schedule is as follows:

Friday, February 22
1:30 pm Introductions
1:40 pm Opening Remarks: Sen. Sheldon Whitehouse,
D-Rhode Island
2:50 pm Presentation Group 1: Juries as Political Actors
Heather Gerken,
Yale Law School
Stephan Landsman, DePaul Law School
William Nelson, NYU
Law School
4:00 pm Presentation Group 2: The Civil Jury’s Place in Our Constitutional
Suja Thomas, Illinois Law School
Robert Burns, Northwestern Law
4:50 pm Presentation Group 3: Value Judgments Through Damages
Neil Vidmar,
Guynga Liu, Duke Law School, Herbert Kritzer, University of Minnesota Law
Valerie Hans, Cornell Law School
February 23
8:30 am Continental Breakfast
9:00 am Presentation Group 4: Juries as Participants in
Alexandra Lahav, University of Connecticut Law School
lya Somin,
George Mason University Law School
9:50 am Presentation Group 5: Jurors as Community Experts
Shari Diamond,
Northwestern Law School
Roderick Hills, NYU Law School
10:40 am Presentation Group 6: Representation By and Diversity on the
Jeffrey Abramson, Texas Law School
Ethan Leib, Fordham Law
Christina Carbone and Victoria Plaut, Berkley Law School
11:40 am Closing Remarks

Wednesday, January 16, 2013

Ft. Wayne Court Texting Jurors and Using Online Questionnaires

I am sure folks have heard the numerous stories of how technology and the Digital Age have led to increased instances of juror misconduct with jurors using social media to discuss the case prior to deliberations or smartphones to conduct independent research. However, technology in the jury box is not always a bad thing. Here is some news out of Ft. Wayne discussing how the court system there appears to be embracing technology and using it to not only expedite jury selection but also to improve communications between the court and jurors. According to the article below, the courts in Ft. Wayne, which have already adopted online juror questionnaires, are now communicating with jurors via text. The program called "mjuror" allows the courts to both send and receive messages to and from jurors. 
Ft. Wayne Journal Gazette: Court 1st in nation to text with jurors

Friday, January 11, 2013

Jurors who Google

The article below discusses a prospective juror in Florida who conducted internet research during jury selection. When asked by the judge why he researched the case the juror explained, "curiosity got the better of me."

Fortunately for this juror he was neither fined nor incarcerated. Instead the judge decided to sentence him to additional service as a juror--one week a month for the next three months. What I find interesting about this growing problem is that few ever look at the system itself. It seems most folks want to place all the blame on the juror rather than examine the legal system as a whole.

Jurors like everyone else in society are curious. In the Digital Age, they now have the tools to satisfy this curiosity. Society should consider offering jurors other ways in which to fulfill this curiosity e.g., courts should allow and encourage questions by jurors.

St. Petersburg Times: Judge sentences misbehaving juror to more
jury service

Monday, January 7, 2013

Race and Capital Jurors: New Law Review Article

Pamela A. Wilkins, Confronting the Invisible Witness: The Use of Narrative to Neutralize Capital Juror's Implicit Racial Biases, 115 W. Va. L. Rev. 305 (2012).

INTRODUCTION: The past ten to fifteen years have seen an explosion in legal scholarship concerning potential applications of cognitive science --particularly of psychological research concerning stereotyping and implicit biases--to legal doctrines, structures, and theories. The questions raised by the scholarship are fascinating: Should the legal system reconceive its employment discrimination doctrines? Should jury selection be rethought? Is national school reform legislation doomed to fail due to its failure to account for parents' implicit biases? Underlying all of these questions is a sometimes tacit and sometimes open challenge to the primacy of rational choice theory, which has long driven much judicial decision-making.

Recent years have also seen renewed scholarly interest in the use of both narrative and metaphor in law. All lawyers--litigators most obviously--are storytellers, but the legal academy all too often has treated narrative and metaphor as the "darker brother[s] . . . [sent] to eat in the kitchen/When company comes." The light-skinned brother, considered smarter, more effective, more respectable, is, of course, logical, syllogistic reasoning. Recently, however, legal scholarship has invited narrative and metaphor to the table, and this invitation has yielded stimulating discourse on a variety of topics, such as the role of narrative in legal education, the implications of using certain metaphors in custody disputes, and the use of myth in constitutional litigation.

Wednesday, January 2, 2013

NV SCT: Hold Batson Hearing Before Dismissing Prospective Juror

In Brass v. Nevada, the Nevada Supreme Court in a three-judge panel opinion overturned the First Degree Murder conviction of Jermaine Brass who along with his brother had been convicted of killing his sister's boyfriend. The reversal was due to the faulty jury selection process that occurred during the joint murder trial of Jermaine and his brother.

During voir dire, counsel for the defendant objected to the prosecution using a peremptory challenge to remove juror No. 173 who was a Black female. This was the second African American juror challenged by the prosecution. Defense counsel argued that juror No. 173 was qualified to sit and that the prosecution was exercising its peremptory challenges in violation of Batson v. Kentucky, which prohibits using a peremptory challenge to strike a juror because of his or her race. Once defense counsel raised this issue, the trial court took a 15 minute break. During that break, the trial court permanently dismissed a number of jurors to include juror No. 173.

Upon returning from the break, the judge held a Batson hearing and determined that the state had offered sufficient race-neutral reasons for challenging juror No. 173. As some may recall, a Batson hearing involves a three-step process. First, the opponent of the peremptory challenge must set forth a prima facie case of racial discrimination. Second, the proponent of the strike must offer race-neutral reasons for exercising the challenge. Third, the judge must then decide if the opponent of the strike has proven purposeful discrimination.

In overruling the trial court's actions, the Nevada Supreme Court determined that "[d]ismissing this prospective juror prior to holding the Batson hearing had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse." The Court then went on to say that failing to hold a Batson hearing is a structural error requiring reversal of defendant's conviction.

As an aside, Associate Justice Gibbons noted in a concurrence that the reason offered by the prosecutor for challenging juror No. 173 (she held democratic views) was inappropriate. According to Justice Gibbons, "[p]olitical affiliation is not a proper component as a basis for asserting a challenge to a juror."