Tuesday, February 25, 2014

The Latest on Juries and Social Media: New Law Review Article

 More From the #Jury Box: The Latest on Juries and Social Media

St. Eve. Judge Burns MichaelZuckerman

Judge Amy J. St. Eve, Judge Charles P. Burns and Michael A. Zuckerman
This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, we have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media. Our results support the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media. We conclude with a set of recommended best practices for using a social-media instruction.

Monday, February 24, 2014

A Defendant's Right to a Bench Trial in Louisiana: New Law Review Note

An Impartial Right: Louisiana's Infringement of a Defendant's Constitutional Right to a Bench Trial Through the State's Constitutional Provision Limiting a Defendant's Right to Waive a Jury Trial

Jackson T. Brown

Abstract: This note argues that, implied within the Sixth Amendment’s Impartial Jury Clause, a criminal defendant enjoys the guaranteed right to waive a jury trial in favor of a bench trial. In State v. Bazile, the Louisiana Supreme Court held that the Sixth Amendment of the United States Constitution does not offer a criminal defendant the absolute right to a bench trial. Bazile was denied the chance to have his case heard in front of a judge because of a provision in the state’s constitution enforcing a deadline by which a criminal defendant must waive a jury trial in favor of a bench trial. However, the U.S. Supreme Court has recognized certain circumstances in which a criminal defendant would benefit from a bench trial. In U.S. v. Singer, the Court held that if a defendant is able to show a compelling reason that a trial by jury would not render an impartial trial, the denial of his proffered waiver violates his constitutional right to an impartial trial. In the present case, Bazile is charged with the murder of his wife, and he is facing the possibility of extensive imprisonment. In a trial of this notoriety, it is reasonable to expect that potential jurors would form biased opinions before hearing the facts of the case and the prosecution’s evidence. Ultimately, Bazile was decided incorrectly because a compelling reason is inherent in Bazile’s case, and he should benefit from a trial before a judge instead of a jury if it ensures an impartial trial.

Friday, February 21, 2014

In Patent Infringement Cases Foreign Companies Should Avoid Juries

Judge Lucy Koh last week denied Samsung's motion for retrial in its patent dispute with Apple (to read earlier posts about this trial go here and here).  However, in making her ruling, she did rebuke the attorneys for Apple for harping on the fact that Samsung is a Korean corporation.  Apparently, foreign corporations accused of infringing on a patent fair far worse when going before a jury as opposed to a judge.

Judge Koh highlighted this fact in her ruling when she cited a previous study that

 found that “foreign patent holder win rates in jury trials against domestic infringers (38%) are significantly lower than domestic patent holder win rates against foreign infringers (82%). In contrast, in cases decided by judges, the patentee win rate is almost identical, with domestic  patentees winning 35% of the time against foreign infringers, and foreign patentees winning 31% of the time against domestic infringers.” 

To read more about this phenomenon read Kimberly A. Moore's, Xenophobia in American Courts, 97 Nw. L. Rev. 1497 (2003).

Monday, February 17, 2014

Jury Nullification and Marijuana

Clay Conrad has a very well written op-ed on jury nullification and the legalization of marijuana.  The premise of Conrad's argument is that through jury nullification citizens can informally legalize marijuana by acquitting those charged with low levels of possession.  Conrad, a practicing attorney and author of Jury Nullification: The Evolution of a Doctrine, has written extensively on the topic of nullification.

According to the op-ed,

Jurors have the prerogative to take a broader view of their jobs, one more in line with the history and purpose of the institution of trial by jury. Jurors can take an active role in the administration of justice and apply that “warm, living public opinion” to determine whether to label one of their neighbors a criminal. In doing so, they just might save a morally innocent (albeit technically guilty) individual from an unjust conviction and save our prisons, probation officers and social workers the expense of dealing with one more unnecessarily shattered life.

Tuesday, February 11, 2014

Jury Size

One residual consequence of George Zimmerman's acquittal last year has been an increased public interest in jury size.  As some will recall, Zimmerman was acquitted by a 6-person all female jury.  Currently, several states have pending legislation that would increase the number of jurors in criminal trials.

In Wisconsin, the state senate passed a bill which would require 12-person juries for all criminal cases to include misdemeanors.  This same bill has already passed the Wisconsin Assembly.

In Florida, the Senate Criminal Justice Committee on a 4-3 vote approved legislation to require 12-person juries in any case where the sentence may result in a life sentence.  In the Florida House of Representative, a companion bill would require 12-member juries for all criminal cases.

Thursday, February 6, 2014

Latest Edition of the Jury Expert

The latest edition of the Jury Expert from the American Society of Trial Consultants is now available.

The ABC’s of Religiosity: Attitude, Belief, Commitment and Faith

Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.

No Such Thing As A Sure Thing: Neuroscience, The Insanity Defense, and Sentencing Mitigation

Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly

A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America

Alexis Forbes brings us all up to date on research, why it’s important to understand LGBTQ culture, and terminology. She includes a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this.

Defense Responses to Jailhouse Informant Testimony

Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.

Metaphors and the Minds of Jurors: Practical Applications for Trial Attorneys and Consultants

We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor--how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.

Why Do We Ask Jurors To Promise That They Will Do the Impossible?

Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.

Tuesday, February 4, 2014

Juror Questions

Here is a newspaper article examining the practice of allowing jurors to ask questions.   For a newspaper article, it is fairly in-depth.  For example, here is the part examining the pros and cons of allowing the practice.

The committee listed six potential benefits from the recommendation: improving accuracy of the decision-making process; jurors would be more confident in their verdict and satisfied they possessed all the necessary information to reach their decision; increase juror involvement; an increased role in the trial could lead to jurors better understanding their responsibility; informing the attorneys about unclear areas of the case; and could reveal important evidence or issues not covered by the attorneys.

The committee listed four potential problems: jurors might ask inappropriate or prejudicial questions; questions could upset one side's strategy or introduce an unwelcome surprise; a juror question might take on more significance than those presented at trial; active jurors could be more influential during deliberations.

To read the article in full go here.