Saturday, June 22, 2013

Six Person Jury

Due to the fact that George Zimmerman is being tried by a 6-person jury in Florida, there has been a renewed interest in jury size so here is a brief background sketch on the topic.  Since 1970, the U.S. Supreme Court has recognized juries composed of less than 12 jurors (Williams v. Florida). In Williams, the Court determined that while the Common Law might call for 12 jurors "there is absolutely no indication in the intent of the Framers' of an explicit decision to equate the constitutional and common-law characteristics of the jury."  The Supreme Court has gone so far as to say that 6-person juries are okay; however, the jurors must be unanimous (Burch v Louisiana). 

Despite the Supreme Court's acceptance of 6-person juries, there have been numerous studies that overwhelmingly show that larger juries perform better. Here is just a brief sampling of what those studies discovered with respect to reducing jury size: (1) jury less representative of the community as a whole; (2) fewer jurors to remember important pieces of evidence; (3) the jury is less likely to overcome group biases; and (4) decreased accuracy in verdicts. While I don't think the aforementioned issues will necessarily occur by reducing the jury from 12 to 11, there is the potential for problems with 6-person juries. 

For related posts on 6-person juries go here.

Monday, June 17, 2013

Judge's Comments Prior to Polling the Jury Not Enough to Oveturn the Verdict (U.S. v. Cherry)

In U.S. v. Cherry the defendant was convicted by a jury of possession with intent to distribute, possession of a firearm in furtherance of drug trafficking, and possession of a firearm after a felony conviction.

When the jury had finished deliberating, the jury foreperson handed the verdict form, which she had signed, to the clerk, who passed it to the district judge. The judge returned the guilty verdict to the clerk, who proceeded to read it aloud. The clerk then asked, “Members of the jury, is this your verdict, so say you all?” J.A. 514. All the members of the jury indicated an affirmative response. At this point, the judge thanked the jury and added the following remarks:

Sometimes all of the information is not given to you. This defendant had previously been convicted of distributing a controlled substance, had previously been convicted of resisting arrest, and had previously been convicted of carrying a firearm in furtherance of a drug trafficking crime.

I only tell you that to tell you that these things are not admissible because of the way the rules are written, that a person has to be judged on this particular crime, but I just thought I would tell you about that because it tells you a little bit about Mr. Cherry's background and it will give you some idea of that.

I thank you for your paying close attention, just so you would know what, unfortunately, I know because I can see all of this information, and you haven't seen it and it would not be admissible. But the rules of evidence under these circumstances didn't permit it.

J.A. 514–15. Immediately following these comments, it became clear that the defense counsel wished to poll the jury. The clerk asked each juror, in succession, “Is this your verdict?” Id. at 515–16. And each juror replied that it was.

The defendant appealed his conviction arguing among other things that the judge's comments prior to polling the jury constituted plain error.  The defendant had to argue the plain error standard because his attorney at trial had failed to object to the judge's comments.

Under the plain error standard, a defendant must demonstrate (1) that an error occurred, (2) that the error was plain, and (3) that it affected his substantial rights.

In applying this test, the 4th Circuit Court of Appeals determined that "yes" it was error for the judge to comment on the defendant's record prior to polling the jury, however, the trial judge's comments did not substantially impact the defendant's rights.  The appellate court pointed out that

the evidence against him [Cherry] was overwhelming and the circumstances surrounding the erroneous remarks are strong indicia that the jury had reached a unanimous guilty verdict.

The appellate court also noted that

Mitigating any potential damage done by the court's ill-advised comments was the fact that the jury was already aware that Cherry was a convicted felon. Although the jurors had not been told what crimes Cherry had been convicted of, the parties stipulated that he had been “convicted in a court in Virginia of a qualifying felony crime punishable by imprisonment for a term exceeding one year prior to the occurrence of the acts charged as violations in the indictment.”

Thursday, June 13, 2013

Zimmerman Jurors to be Sequestered

The judge in the Zimmerman murder trial has shifted course and has now decided to sequester the jurors. 

The Florida judge presiding over George Zimmerman's murder trial reversed herself today and announced that the jurors will be sequestered for the trial. 

"The parties have, both sides have, stipulated that this trial will last between two and four weeks," Judge Debra Nelson said. "Based upon that approximate stipulation, I will be sequestering the jury."
Earlier the judge had ruled that the six-member jury and four alternates would be anonymous, but declined to have them sequestered. 

In February 2012, Zimmerman, a neighborhood watchman in Sanford, Fla., shot and killed 17-year-old Trayvon Martin after a confrontation in the dark. Zimmerman has said he shot the black teen, who he said had been acting "suspiciously," in self-defense.

 The racially charged case has attracted national attention.

Jurors are rarely sequestered, isolated by the court away from their families and their homes, for a second degree murder trial. But suspicious testimony by potential jurors this week has triggered fear of a tainted jury pool

ABC News: George Zimmerman Judge Orders Jury to Be Sequestered During Trial

For more background on this issue go here.

Thursday, June 6, 2013

Arias Juror Questions Now Available

Detroit Free Press: Jodi Arias trial: Transcripts on juror questions unsealed

The next day, according to juror questions released Wednesday, the jurors said, "We would like to explain our earlier question." They had not yet reached impasse, they said, but wanted to know what to do in the event they did. Stephens wrote back that they should use a juror questionnaire form.

Later that day, they sent another message.

"After long and careful deliberation, we are unable to reach a unanimous decision," it said.
Stephens scribbled a note back to them: "Do you think breaking until Wednesday, May 29, could benefit your deliberations?"

The response: "We do not feel further deliberations will change the outcome." Stephens told them to complete a verdict form to that effect.  It was over.

USA Today: Jodi Arias juror questions the judge wouldn't ask

Wednesday, June 5, 2013

Jurors to be Anonymous in George Zimmerman Murder Trial

The judge, in the George Zimmerman murder trial, ruled today that the jurors will not be sequestered but will be anonymous to the public at least until the end of the trial.  As some may recall, Zimmerman is accused of killing Trayvon Martin. For an earlier post on this issue go here and here.

Orlando Sentinel: George Zimmerman jurors will be anonymous at trial, judge rules

Sunday, June 2, 2013

Latest Edition of the Jury Expert

ASTC's latest edition of the Jury Expert is available here.  Below is a list of articles in this most recent edition.

Pretrial Publicity and Courtroom Umamiby Celia Lofink, Ph.D. of Jury Workshop and Marie Mullaney, M.S. of Litigation Solutions, LLC

As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn?by John G. Browning, J.D. of Lewis Brisbois Bisgaard & Smith with responses from Kacy Miller, Ellen Finlay and Rosalind Greene

Do You See What I See? How a Lack of Cultural Competency May Be Affecting Your Bottom Lineby Michelle Ramos-Burkhart, J.D., LLM

Hackers, Hosts & Help Requestsby Rita Handrich, Ph.D., Editor of The Jury Expert

The Scared Witness: A Chapter from “Can This Witness Be Saved” by Katherine James, M.F.A. of Act of Communication

Why Telling a Witness That It’s OK to Say They Don’t Know Is Good for Justice by Nathan Weber, Ph.D. of Flinders University and Tim Perfect, Ph.D. of Plymouth University with responses from Jessica Boyle, Jonathan Vallano and Steve Charman

 The Interview-Identification-Eyewitness Factor (I-I-Eye) Method for Analyzing Eyewitness Testimony by Nell B. Pawlenko, Ph.D. of Catholic University, Richard J. Wise, J.D., Ph.D. of the University of North Dakota, Martin A. Safer, Ph.D. of Catholic University, and Brett Holfeld, M.S. of the University of North Dakota with responses from Roy Aranda and Rita Handrich

 80 iPad Apps Attorneys Love, 8 Days a Week: An App Strategy for Work, the Courtroom, and Your Personal Life by Alison K. Bennett, M.S. of Bloom Strategic Consulting