Juries

Juries Has a New Web Address (www.juries.typepad.com)

2008-12-18T15:08:00.002-05:00

As of yesterday, Juries has moved to:

www.juries.typepad.com

or just click the link to Juries

Community Service or Jury Duty

2008-12-16T20:05:00.003-05:00

This is the issue being appealed by the Missouri Public Defender's Office in State v. Ryan Ferguson. Apparently, the trial court in Ferguson, pursuant to local court rules, allowed 13 of the possible 848 potential jurors in the case to opt out of jury service by paying $50 and performing community service. The local public defender is challenging this policy arguing that it violates the defendant's 6th Amendment right to a jury made up of a cross-section of the public. Arguably, this policy does discriminate against those who can't afford the $50. However, it remains to be seen whether the court is willing to find this wide-spread local practice unconstitutional.

Ferguson lawyer cites jury selection problem
Ferguson's appeal questions Lincoln County jury selection procedures
Ferguson seeking new trial in Heitholt murder

Jury Related Stories from the Brian Nichols Murder Trial

2008-12-15T06:32:00.006-05:00

Fulton County District Attorney Paul Howard wants the law changed to allow 10-2 verdicts in death penalty cases.

Legislature Urged to Revamp Death Penalty Law
District Attorney Paul Howard called for the state Legislature Saturday to change Georgia’s death-penalty law requiring a unanimous jury decision for a defendant to be sent to Death Row.
By a 9-3 hung jury decision on Friday, Howard lost a lengthy and costly effort to have Brian Nichols sentenced to death for the March 11, 2005 Fulton County Courthouse killings.
Howard said a minority of jurors were determined that Nichols get a life sentence, whether or not he deserved to be sentenced to death.

Jurors discuss the stress of being one of the few who don't vote with the majority.
Holdout Jurors Face Pressure
Elizabeth Strong knows what it’s like to be confined in a room and look across a table at angry faces. Strong was the lone holdout juror two years ago in a horrific and emotionally charged Fulton County case in which two teens were accused of duct-taping and broiling a puppy in an oven. Her stand caused angry shouting matches over three days of deliberations and caused a mistrial after which she was roundly criticized.

The 70-year-old grandmother was thinking of that ordeal last week as the jury in the death penalty trial of courthouse killer Brian Nichols remained deadlocked 9-3.
“I feel for those jurors (in the minority); I know they are catching it,” she said. “I’m glad I’m not on this one. Ours was hard enough. But this is human beings.”

Expert discussing jury dynamics during deliberations.
2 Jurors Likely Dominating Debate, Expert Says
Of the 12 jurors who are deadlocked on whether Brian Nichols should be put to death, as few as two probably are dominating the debate, an expert says. And time may be the crucial element in whether dissenting jurors hold out or ultimately join the majority in a verdict, said juror attitude researcher John W. Clark III. The Nichols jury Thursday said it was deadlocked 9-3 on Nichols’ punishment. The same jury earlier found him guilty of murdering four people, including a judge, in his escape from a rape trial at the Fulton County courthouse.

The guilty verdicts depended more on evaluating evidence, and the jurors now are into emotional territory, Clark said.“You’ve probably got two people who are fighting — one for the nine and one for the three,” said Clark, the criminal justice program coordinator for the Atlantic region of Troy University, based in Norfolk, Va.

Possible Jurors for Gov. Blagojevich Impeachment Trial

2008-12-14T17:34:00.003-05:00

Senators Potential Jurors in Impeachment
Some state senators are minding their words about Gov. Rod Blagojevich these days, hoping to be seen as impartial should lawmakers decide to impeach the embattled chief executive.If the Illinois House votes to impeach Blagojevich in the wake of federal corruption charges, the Illinois Senate could conduct a trial, with the state's 59 state senators serving as a larger-than-usual jury. For that reason, some senators say voicing an opinion over whether Blagojevich would be impeached could taint their own jury pool

Use of Jury Duty Scam for Identity Theft Grows

2008-12-12T06:56:00.002-05:00

Police: 25 Fall Victim to Jury Scam in Eagle County
A telephone solicitation "jury duty" scam has victimized at least 25 people in Eagle County this year, authorities said.

The victims surrendered their Social Security number to a caller who identified himself as a "jury coordinator," and the information was then used to steal their identity, according to the Eagle County Sheriff's Office.

The same or similar scam has been reported in 11 states, including Illinois and Oklahoma.
As part of the scam, a caller tells people who have answered their phone they've missed a jury duty assignment. When the victim protests the accusation, the caller asks for a Social Security number and date of birth to verify identity and to cancel an arrest warrant.

University Receives Grant to Study Jurors and Forensic Evidence

2008-12-10T13:31:00.002-05:00

Federal Grant to Help Law, Psychology Professors Study Jurors' Responses to Forensic Science Evidence
Three professors at Arizona State University are among the first scholars in the country to receive funding from the National Institute of Justice to research the psychology of decision-making using forensic science expert evidence. A $496,450 grant was awarded to Dawn McQuiston-Surrett , an Assistant Professor of Psychology in the Division of Social and Behavioral Sciences at ASU's West campus and to Jonathan "Jay" Koehler and Michael Saks , Professors at the Sandra Day O'Connor College of Law, to study how jurors respond to fingerprints, bite marks, tool marks, handwriting, footwear impressions, tire tracks and other types of forensic identification evidence.

Recession Hits Jury Trials in New Hampshire

2008-12-09T19:30:00.002-05:00

Jury Trials to Be Halted in One State Feeling Pinch
The Superior Court system in New Hampshire will take the unusual step of halting jury trials for a month early next year because of a widening state budget crisis.

John Broderick, the state’s chief justice, said suspending trials was essential to avoid layoffs in the judicial system, which has already cut $2.7 million from its budget.

Alleged Juror Misconduct in Political Corruption Cases

2008-12-08T19:40:00.010-05:00

Both former Governor Don Siegelman (Alabama) and U.S. Senator Ted Stevens (Alaska) are alleging that their respective convictions for corruption related charges should be overturned for, among other things, issues related to their respective juries.

Attorneys for former Governor Siegelman, who will appear tomorrow before the 11th Circuit Court of Appeals, claim that the jurors in the governor's trial did not reflect the racial demographics of Montgomery, Alabama. In addition, they plan to argue that the trial was tainted by juror misconduct. Specifically, they claim that the District Judge failed to "adequately investigate emails that purportedly were written by jurors before and during deliberations and that were anonymously mailed to the attorneys." Defense attorneys will most likely argue that these "messages show premature deliberations, deliberations outside the presence of other jurors and the introduction of outside materials to deliberations that violated Siegelman and Scrushy's constitutional rights to a fair trial."
Former Governor Don Siegelman and Richard Scrushy's Appeal Nears

In the case of Senator Stevens, his attorneys last week filed their motion for a new trial based on, among other things, deceptive acts by some of the jurors who participated in the senator's trial. It doesn't appear that the defense is staking its claim on the juror who lied about her father dying, so that she could attend a horse race. Rather, the defense is focused on two jurors who might have been less than candid on their juror questionnaires. As some may recall, this case had quite a few colorful jurors. There was the disruptive juror who was close to being removed and another who maintained a blog about his experiences in the trial.
Stevens Seeks Retrial In Alaska

New Jury Scholarship

2008-12-07T09:00:00.003-05:00

1. Harges, Bobby Marzine. Peremptory challenges in jury selection in Louisiana--when a “gut feeling” is not enough. 54 Loy. L. Rev. 95-128 (2008).

2. Usman, Jeffrey Omar. Ancient and modern character evidence:
how character evidence was used in ancient Athenian trials, its
uses in the United States, and what this means for how these
democratic societies understand the role of jurors. 33 Okla.
City U. L. Rev. 1-45 (2008).

3. Landsman, Stephan and Jing Zhang. A tale of two juries: lay
participation comes to Japanese and Chinese Courts. 25 UCLA Pac.
Basin L.J. 179-227 (2008).

Russian Juries

2008-12-06T09:27:00.005-05:00

In contrast to countries like South Korea and Japan, Russia appears to be moving in the opposite direction with respect to increasing the use of juries. Last week, the Russian Parliament (Duma) began initial steps to restrict the use of juries for certain crimes like terrorism, espionage and organizing mass demonstrations. Proponents of the changes argue that they are needed because in the past years juries often have acquitted many suspects despite strong evidence incriminating them. According to statistics from 2007, Russian juries acquitted 2 in every 10 defendants while judges acquitted approximately 1 in 100 defendants. Russia, however, unlike many common law countries permits retrial of acquitted defendants.

Duma Looks to Limit Trials by Jury
State Duma on Friday is to consider in a first reading a bill that would eliminate jury trials for cases involving terrorism, espionage and attempts to overthrow the government.Duma deputies with the pro-Kremlin party United Russia, which is sponsoring the bill, say the legislation is necessary because juries in volatile southern regions have been lenient toward defendants accused of involvement in armed groups and organized crime.

Russia: Jury Trials Under Attack

Russian Legislators to Ban Juries From Serious Cases

Update #3 on Undercover Mom

2008-12-05T19:46:00.003-05:00

For prior posts on this topic go here and here.

Convict's Mom Goes Undercover, Gets Dirt on Juror
NEW YORK (AP) --Doreen Giuliano was obsessed with saving her son from a life behind bars after he was convicted of murder. She gave herself an extreme makeover — blonde dye job, fake tan, sexy wardrobe, phony name — and began spying on jurors. She befriended one juror to root out any possible misdeeds at the trial, and for nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

Hedgpeth v. Pulido (Application of Harmless Error to Jury Instructions)

2008-12-03T05:30:00.005-05:00

The SCOTUS Blog offers the following information on yesterday's SCT ruling on Jury Instructions.

Court Rules on Jury Instructions
The Supreme Court ruled Tuesday that a conviction based on jury instructions containing more than one theory of guilt, with one of those theories invalid, is to be judged on whether that was harmless error. That is not to be treated as a “structural error” that undermines the verdict itself, the Court concluded in Hedgpeth v. Pulido (07-544). The Court was unanimous in that part of the ruling, but the decision to send the case back to the Ninth Circuit Court for harmless error analysis drew the dissents of three Justices.

See also the article in the ABA Journal.

Update #2 on Undercover Mom

2008-12-02T14:12:00.001-05:00

Juror Sting Could Overturn Murder Verdict
Trying to trap the juror, Doreen Giuliano used small talk as cover for elaborate verbal snares. When it seemed as if she might be revealing too much, she changed the subject. And when the conversation drifted away from what interested her most — her son’s case — she smoothly coaxed it back her way

"Now What Makes Juries Listen" (new book about jurors)

2008-12-02T05:28:00.006-05:00

Sonya Hamlin has written a new book entitled "Now What Makes Juries Listen" published by West Legalworks. In the book's press release, Hamlin cites three major issues that "have changed everything radically" in the jury box:

Technology - "We don't talk to each other now, we type! We get our information about anything online, on our own, fast and easy," Hamlin says. "So, learning from someone talking at us has lost its power and credibility. And our attention span is now one and a-half minutes."

Generational differences - "We now have four generations sitting on the jury: seniors, baby boomers, generation X and generation Y. They're almost from different planets. Reaching each one requires new information in order to reach and persuade them."

Multicultural diversity - "We have people on juries who have become American citizens but are conditioned by other societies, other governments and other kinds of laws."

For more information about the book or to listen to a podcast go here.

Undercover Mom Continued

2008-11-30T08:48:00.003-05:00

Not surprisingly, there have been additional news stories about the NY mom who went undercover to investigate a juror who sat on her son's murder trial. The NY Times article below provides the best legal analysis.

Mother’s Sting Faces Stiff Legal Obstacles
Doreen Giuliano concocted an elaborate undercover sting operation to free her son from prison, changing her appearance and her identity to pursue a flirtatious relationship with a man who was a juror in her son’s trial. But legal experts said on Saturday that she would have a difficult time persuading a judge to overturn her son’s conviction.

What mom did for love of her son The Star-Ledger - NJ.com
Mother of convict John Giuca used sexy strategy to get info from juror New York Daily News
Mom's Makeover to Woo Juror, Prove Son's Innocence Gothamist

Parent Goes Undercover in Search of Biased Juror

2008-11-29T07:37:00.005-05:00

This is a fascinating made for movie tale about how far a parent will go to demonstrate that a juror in her son's murder trial was biased.

Disguised Mother Woos Juror in Bid to Free Son
At 46, Doreen Giuliano reinvented herself. She dyed her hair blond and tanned at a salon. She left her white seven-bedroom, colonial-style house for a spare basement apartment three miles away. She took on a new name, and for about a year, she said, she rode her bicycle around her new neighborhood, trying to attract the gaze of a young man whom she badly wanted to get close to.

This was no midlife crisis, though. It was a one-woman sting operation. Ms. Giuliano is the mother of John Giuca, a Brooklyn man who was convicted three years ago along with another man in the 2003 killing of Mark Fisher, a college student from New Jersey who was found beaten and shot five times after a night out in New York City. Ms. Giuliano claims her son is innocent and has mounted an unstinting campaign to free him from prison, where he is serving 25 years to life. She maintains a Web site to rally supporters of her son, and Mr. Giuca’s lawyers have filed an appeal alleging prosecutorial misconduct.

But in the last two years, Ms. Giuliano’s activism reached dramatic new heights. Having assumed the role of a 30-year-old research analyst from California who wore six-inch heels and push-up bras, she set out to meet a man named Jason Allo, a contractor who lived in Bensonhurst, Brooklyn. He was a juror in her son’s trial.

Revealing Juror Bias

2008-11-27T07:01:00.006-05:00

Below is an interesting article discussing the split in the courts with respect to jurors revealing information learned during jury deliberations. Specifically, the courts are torn over whether a juror may testify about prejudicial racial statements made by other jurors during deliberations. The issue becomes even more involved when the racial views revealed by the jurors in question are in direct contrast to the statements they provided at voir dire. For more background information on this topic go here.

Circuit Split Deepens Over Jury Bias Issue
Deepening a split among the circuits, the 10th U.S. Circuit Court of Appeals reinstated an assault conviction despite indications that jurors lied about racial bias in the case against an American Indian.

The 10th Circuit recently reinstated a jury verdict, upholding the sanctity of jury deliberation process even when a juror stepped forward to accuse others on the panel of racial bias against American Indians.

Comments During Voir Dire Cost Executive Job

2008-11-25T02:15:00.002-05:00

Attention Prospective Jurors: Can You Set Aside Your Personal Biases and Judge the Accused Strictly on the Evidence Presented in Court — and Nothing Else?

The resignation of a top TV news executive in Fresno over the weekend following racially inflammatory comments he made during jury selection raises serious questions about the attitudes and beliefs of prospective jurors in our courts.

Bob Hall, president and general manager of KFSN Channel 30, the ABC affiliate in Fresno, resigned late last week after comments he made in Fresno County Superior Court prompted a judge to dismiss an entire jury pool out of concern that they may have been tainted by Hall’s statements, the Fresno Bee reported.

During jury selection, Hall told the court he couldn’t be fair as a juror in a Hispanic man’s trial because research done by the station showed Hispanic males have a propensity to commit violent crimes. He also said the district attorney would not spend money on prosecutions unless the defendant was guilty — a statement that appears to run counter to a central tenet of the criminal justice system, that the accused must be considered innocent until proven guilty.

National Jury Summit (April 1-3)

2008-11-24T19:20:00.002-05:00

National Jury Summit to Address 'Protecting the Jury Trial - a Curriculum for Success'

Protecting the jury trial will be the focus of the third National Jury Summit hosted by the American Board of Trial Advocates. The Summit will be held at the Ritz-Carlton in San Francisco, April 1-3, 2009.

This will be the third jury summit presented by ABOTA. The two previous summits were held in 2005 and 2007.

"Trial by jury is - unfortunately - a forgotten constitutional right that most Americans don't even realize is being taken away from them," said John L. Holcomb, president-elect of the American Board of Trial Advocates. "America's greatness lies in its people. Eliminating the jury system in favor of justice by a bureaucracy is an attack on the very reasons this country was founded."

http://www.abota.org/

Jurors with Criminal Records

2008-11-23T06:42:00.002-05:00

Stories of the Absurd: Jurors Lie About Criminal Past

A jury trial ended in a mistrial before it began Tuesday when a prosecutor discovered three jurors lied about their criminal records.

All three were chosen Monday, along with 11 others, for the trial of a Scranton man on drug and gun charges. As part of the selection process, potential jurors must fill out a questionnaire that asks, among other things, if they have ever been arrested and if they have ever been convicted of a crime.

All 14 jurors — 12 plus two alternates — answered they had not. But a background check, which is routinely conducted on jurors selected in a criminal case, revealed three had criminal records, Deputy District Attorney Margaret Bisignani said.

Update on HLF Jury and Discussion on Long Deliberations

2008-11-22T19:57:00.003-05:00

HLF Jury Update: 7 Days and Counting

The Holy Land Foundation terrorism financing re-trial jury wrapped up its first full week at about 1 p.m. today without reaching a verdict. They didn't deliberate at all Tuesday, Nov. 18, because one juror was sick. So today marks seven days. They've got quite a ways to go before they get close to the 19 days last year's panel spent deliberating. Actually, that group spent more time bickering than really debating the evidence, or at least that's what it seemed from reading their notes.

There were no notes from the re-trial jury all week, according to court staff. We still don't know what kinds of questions they asked in last week's five notes (they're sealed until after the verdict), but I get a sense that there is much less turmoil. "Quiet" is the prevailing description I'm hearing. But one never really knows until it's all over and jurors speak out.

So do long deliberations favor the government or the defense

New Jury Scholarship

2008-11-19T14:49:00.002-05:00

Case Western Law Review
Whittlesey, John W. Note. Private judges, public juries: the
Ohio Legislature should rewrite R.C. § 2701.10 to explicitly
authorize private judges to conduct jury trials. 58 Case W. Res.
L. Rev. 543-573 (2008).

Duquesne Law Review
Nicoletti, Amy. Recent decision. Pennsylvania’s common law
and the United States Constitution provide members of the
press with a right of access to names but not addresses of jurors
impaneled in a criminal trial. (Commonwealth v. Long, 922
A.2d 892, 2007.) 46 Duq. L. Rev. 641-655 (2008).

Are Female Jurors Tougher in Sexual Assault Cases?

2008-11-17T18:57:00.010-05:00

British actress Helen Mirren has created quite stir over the weekend with her comments about female jurors serving on rape cases. According to media reports, Ms. Mirren is reported to have said that courts select as many women as they can for the jury in rape cases because 'women go against women' and usually assume that the victim of the alleged rape was 'asking for it.'

Helen Mirren Has Got It Wrong About Rape
Helen Mirren’s staus as a national treasure seems to be going to her head. She may look better in a bikini than any other known 63-year-old, she certainly played The Queen at least as convincingly as Elizabeth II, but she isn’t a spot-on authority on everything - certainly not on how juries operate...

Readers might also be interested in checking out Anne Reed's blog post When Women Judge Women

Jurors Testifying About Deliberations (US v. Benally)

2008-11-16T19:37:00.008-05:00

US v. Benally

Last year, Kerry Dean Benally was convicted of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon, in violation of 18 U.S.C. § 111(b). After the trial, one of the jurors came forward with a charge that the jury deliberations had been tainted by racial bias and other inappropriate considerations. In response to this misconduct, the trial judge granted defendant a new trial. The trial court held that Federal Rule of Evidence 606(b) which generally prohibits jurors from testifying about jury deliberations did not apply in this case. This decision, however, was recently reversed by the 10th Circuit in U.S. v. Benally.

The 10th Circuit held that Rule 606(b)’s general prohibition against jurors testifying about jury deliberations covers the juror's testimony of racial bias and the Sixth Amendment does not require an exception. The defendant's motion for a new trial was overturned and the conviction reinstated where: 1) the district court erred in admitting both a juror's testimony about racial bias and juror testimony about sending a message under Federal Rule of Evidence 606(b); and 2) this was the only evidence that defendant presented to challenge the verdict.

Defendant Ordered to Pay Jurors' Expenses

2008-11-12T19:52:00.003-05:00

Here is one way to cut down on court costs.

Vrdolyak Ordered To Pay Jurors' Expenses
Former Chicago Ald. Edward Vrdolyak is going to literally pay for his last-minute decision to plead guilty last week. In an unusual move in a criminal case, U.S. District Judge Milton Shadur entered an order late Monday requiring that Vrdolyak pick up the tab for dozens of prospective jurors who showed up at the Dirksen U.S. Courthouse. But instead of picking a jury on Nov. 3 and proceeding to trial, Vrdolyak pleaded guilty to his role in a fraudulent real estate deal.The judge gave Vrdolyak until Nov. 21 to pay $5,923.59 to cover the cost of paying the prospective jurors' appearance and mileage expenses, court records said.

More News On MI Jury Reforms

2008-11-07T16:02:00.004-05:00

As previously discussed, the state of Michigan is conducting a pilot project to study jury reform proposals. These proposals (listed below) are being tested in several state district courts until 2010 when a decision will be made as to whether they should be implemented permanently and state wide.

(1) Giving jurors binders with the legal instructions that the judge typically only gives orally.

(2) Providing jurors with copies of documents that were entered into evidence.

(3) Allowing experts testifying for the defense or prosecution in either civil or criminal cases to be called back-to-back so that jurors can hear all of the technical testimony at once or having the experts basically debate each other or answer questions from the judge.

(4) Allowing jurors to take notes and ask questions.

(5) Permitting the jurors to discuss the case with each other prior to deliberations.

(6) Permitting the judge to summarize the case for the jury.

According to the article below, the last proposal has proven to be the most controversial to date.

Local Courts Try Out Jury Reforms
Jury duty in Michigan soon may become less of a duty.
An initiative launched by the Michigan Supreme Court aims to help jurors along the sometimes confusing path to a verdict. But some of the proposed reforms -- which include allowing judges to summarize evidence -- are causing concern even among judges themselves.

How Jurors Process Information

2008-11-06T16:28:00.005-05:00

Here are two interesting articles that discuss how jurors process information. The first, an English article, looks at whether the current generation which is so reliant on the internet and technology has trouble listening. The second article looks at the potential problems that can arise when lawyers give jurors too much information or information that is overly complex.

Web-Savvy Young Make Bad Jurors Because They Cannot Listen
In a speech, Lord Judge of Draycote, the Lord Chief Justice, said it might be better to present information for young jurors on screens because that is how they were used to digesting information.

He said: "Most are technologically proficient. Many get much information from the internet. They consult and refer to it. They are not listening. They are reading. "One potential problem is whether, learning as they do in this way, they will be accustomed, as we were, to listening for prolonged periods.

"Even if they have the ability to endure hours and days of sitting listening, how long would it be before some ask for the information on which they have to make their decision to be provided in forms which adapt to modern technology?

Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process
When the high-profile prosecution of a Texas charity accused of helping Palestinian terrorists collapsed in a chaotic mistrial here a year ago, there were lots of theories about what went wrong, from government overreaching to a new political climate to a rogue juror.
But there was another problem, according to lawyers who followed the trial: Some jurors were bored and bewildered. They were buried under 197 counts and an avalanche of evidence, including hundreds of documents and dozens of wiretap tapes...

Jury consultant Robert Hirschhorn offers this trifecta: "A, you have to make it interesting. B, you have to use simple words. C, you need to come up with analogies or examples."

Horse Race or Jury Duty

2008-11-03T21:27:00.004-05:00

Stevens Juror Lied About Father's Death
The juror who was dismissed from the trial of Sen. Ted Stevens to attend her father’s funeral in California has admitted that her father had not died and that she went to California to attend a horse race.The juror, Marian Hinnant, admitted to U.S. District Judge Emmet Sullivan in a Monday morning hearing that her father hadn't died and she was in fact at the Breeders' Cup in Arcadia, Calif.

See also the Blog of LegalTimes:Juror in Stevens Case: My Father is not Dead

Do Jurors Understand Beyond Reasonable Doubt?

2008-11-01T17:12:00.002-04:00

According to the article below, Australian jurors struggle to come up with a meaningful definition of "Beyond Reasonable Doubt."

Opinion Divided on Reasonable Doubt
A survey of more than 1000 jurors has prompted a controversial suggestion — juries might need to be told the meaning of "beyond reasonable doubt". The three words represent the highest standard of proof under the legal system.

Bench vs. Jury Trials (DOJ State Civil Survey)

2008-10-30T16:23:00.002-04:00

DOJ Study: Plaintiffs Win More Than Half of State Court Civil Trials
Plaintiffs won in more than half of state court civil trials in 2005 and were more likely to get a favorable verdict in bench than jury trials, according to a new U.S. Department of Justice report.
Plaintiffs won in 56 percent of all general civil trial cases. Judges ruled in their favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time. The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts.

Jury News

2008-10-28T19:49:00.003-04:00

Unanimous Juries and the Supreme Court
In the 1957 movie “12 Angry Men,” Henry Fonda portrayed the lone holdout on a jury charged with deciding whether a young Latino man had stabbed his father to death. Eventually, the Fonda character convinces his fellow jurors that there is reasonable doubt of the young man's guilt, and the jury acquits him. The film was a fictionalized -- even romanticized -- depiction of one of the hallmarks of the U.S. legal system: that a defendant must be convicted by a unanimous jury of his peers.

Anti-gay Potential Jurors out of Mobile Co. Trial
A Mobile County judge has rejected some anti-gay prospective jurors who declared they do not approve of the lifestyle of the cross-dressing defendant.

Court: Juror with Dreadlocks Improperly Dismissed
The South Carolina Supreme Court says an attorney's "uneasiness" over a prospective juror's dreadlocks was a racially motivated reason for striking the man from a jury in a car accident case.McCrea v. Gheraibeh

County Court Hears First Juvenile Trial
A 16-year-old girl who played tug-of-war with a police officer for control of her high school identification after he asked to see some ID became the first juvenile to be tried by a Shawnee County District Court jury on Monday. The trial of Deloress Slater was the first in Shawnee County since the Kansas Supreme Court ruled in June that juveniles have a right to a jury trial.

Lawyer Joke not Enough to Prejudice the Jury

2008-10-25T16:16:00.004-04:00

While telling lawyer jokes may offend some attorneys, they generally won't lead to a guilty verdict being overturned at least according to the 1st Circuit Court of Appeals. Recently, that Court in U.S. v. Grullon determined that "'extraneous' material--namely a joke printed from a website making fun of the legal profession--found in the jury room after a verdict was returned," was insufficient grounds for the District Court to declare a mistrial. The Court went on to note that the joke posed no real danger of prejudicing the jury against the defendant because it had "nothing to do with the issues in the case or any more connection with one side's counsel than the other's."

For more information on the case click here.

Jury Problems in Senator Ted Stevens' Corruption Trial

2008-10-23T16:41:00.005-04:00

Jury Foreman Asks That A Juror in Stevens' Trial Be Removed

The foreman of the jury in Alaska Sen. Ted Stevens' corruption trial asked today that a juror be removed following "violent outbursts" with other jurors and her refusal to "follow the rules and laws" during deliberations.

OJ Juror Questionnaire Update #4

2008-10-21T21:22:00.003-04:00

Despite OJ's conviction, it looks like the Nevada media outlets are still going to pursue their lawsuit against the court for failing to release the juror questionnaires during the actual trial.

For more background on this issue go here or click on the case or article below.

Colby Williams, a lawyer for the AP and Stephens Media LLC, owner of the Review-Journal, said the judge was incorrect to argue the matter became moot once the trial was over.
Without guidance from the state high court, Williams said, Nevada media "will likely be subjected to orders denying access to other court proceedings in the future."

Media Challenges Judge Over OJ Jury Secrecy

Stephens Media, LLC v. Dist. Ct. (State) (52399)

County Doesn't Want to Expand Jury List

2008-10-20T18:43:00.003-04:00

Contrary to my previous predictions, it appears at least initially that some Pennsylvania counties are not all that enamored with the new state jury lists.

County Won't Use Juror Lists
Montgomery County officials will not use an expanded list of names provided by the state to select juries in the county."What we have now works well enough so there's no need to expand the pool," said President Judge Richard J. Hodgson. "There have been no complaints that the jury pool is not appropriately assembled.""There doesn't seem to be any reason to spend the money to expand it if there is no growing need to use it. That's not to say we won't have to do it some day, but not right now," Hodgson added.

Juries or Panel of Judges

2008-10-19T20:22:00.002-04:00

The Verdict on Juries
Like many crown prosecutors, Christopher Maxwell has reservations about the working of the jury system. "The problem with the jury trial is not just the expense but all the things that can go wrong, jurors not turning up and so on," says Maxwell. "You see juries being discharged all the time."

The NSW Attorney-General, John Hatzistergos, has set up a working group to examine, among other things, improvements to the jury system. But Maxwell's reservations go further. He is one of a few Australian lawyers with the experience to be able to compare the Anglo-Saxon adversarial legal system and the continental inquisitorial one. He spent three years with the United Nations mission in Kosovo. And that led him to ask questions about our way of doing things.

"Working with panels of judges caused me to think a lot about our jury system," he says. "These days in NSW there's a tremendous emphasis on the efficient use of resources, and the biggest saving you could get would be if you didn't have juries. That's a radical thing to say. Time and again, in any jury trial, you'll hear the judge say, 'This jury system has worked for centuries and it's sanctified', and everybody assumes it's the greatest thing...

Jurors' Remarks Don't Win New Trial

2008-10-17T21:32:00.003-04:00

Defense attorneys alleged juror misconduct in a Wednesday Charles County Circuit Court hearing that concluded when a judge denied a new trial to a Bryantown man convicted in August of murdering a 71-year-old.

The defense counsel for William Nathaniel Coates, 30, also argued the verdict in the case was contradictory, necessitating a new trial.

Coates' attorney, Tiffany Harvey, who took the stand Wednesday, testified that while she was walking in the hallway while jurors were deliberating their verdict, she overheard a juror shouting. According to Harvey, the woman yelled, "My friend told me he confessed." She also heard someone say, "He's covering for him."

To continue reading go here.

New Law Review Articles

2008-10-16T20:04:00.002-04:00

Hon. Mary Ellen Barbera, The Honorable Irma S. Baker: Leading the Way Toward Clarity in Criminal Jury Instructions in Maryland, 57 Am. U. L. Rev. 1555-1559 (2008).

Professor Valerie P. Hans, Jurors in the Material World: Putting Tort Verdicts in their Social Context, 13 Roger Williams U. L. Rev. 8-38 (2008).

Canadian Jury Selection--Where Looks Count

2008-10-15T07:11:00.004-04:00

According to the article below, it appears that both Canadian and American lawyers rely on similar criteria when selecting jurors. However, I must acknowledge that this is the first time that I have ever heard of a lawyer using beauty as a criterion for jury selection. According to one Canadian lawyer, he selects at least one attractive woman for the jury so that "no matter how bad the evidence is...[he] ha[s] someone nice to look at." Would a female lawyer do the same thing?

The Inexact Art of Jury Selection
One lawyer avoids men in designer suits.

Another turns away roofers.

Some reject teachers.

With the busy trial season in full swing in downtown Toronto's Superior Court, it is also high season for the intuitive and inexact art of jury selection.

Reminder: ABA Jury Symposium (Oct 16th and 17th)

2008-10-14T16:52:00.003-04:00

The 2008 National Symposium on the American Jury System is the biannual conference on the the state of the jury system in America. For more information see the link below.

http://www.abanet.org/jury/

Jury Reform Comes to Michigan

2008-10-12T21:18:00.002-04:00

Macomb Tests Jury Reform
The Michigan Supreme Court is debating whether to change how juries operate during trials -- and some Macomb County residents will be among the first to test the proposed rules. For the next 14 months, jurors in Circuit Judge David Viviano's courtroom could be allowed to discuss the trial with each other before the case wraps up. And they'll be encouraged to submit questions to the judge in writing before a witness is excused...

Among the proposed changes:
• Jurors will be given binders with the legal instructions that the judge typically only gives orally.
• Jurors will each get copies of documents that were entered into evidence.
• Experts testifying for the defense or prosecution in either civil or criminal cases could be called back-to-back so that jurors can hear all of the technical testimony at once. Or Viviano could opt for the experts to basically debate each other, having both of them answer questions from either the judge or a moderator.
• Viviano also could choose to summarize the case for the jury, which could include pointing out the weaknesses in both sides' arguments...

For previous posts on this topic go here.

More Concerns About Baltimore Juries

2008-10-11T08:01:00.007-04:00

Regular readers of this blog are aware that Baltimore city juries have as of late received increased negative attention, especially from the Baltimore Sun (see for example the previous blog posts here and here). Some believe that their conviction rates are too low when compared to the nearby surrounding counties. This led to a study suggesting that the Baltimore city jury pool be expanded to include county jurors.

This belief that Baltimore city juries are defendant friendly has also led (no surprise here) to an increase in jury demands for misdemeanor charges. This in turn has led to greater workloads for the court system to include prosecutors and defense counsel. What I find most interesting about this article is the underlying suggestion that more jury trials somehow damage or harm the legal system or society as a whole.

Requests for Jury Trials Swamping City Courts
Experienced Baltimore defense attorneys are increasingly requesting jury trials in minor cases, flooding the city's already overwhelmed courts and frequently securing more lenient plea deals from prosecutors.Between 35 and 65 misdemeanor cases are transferred daily from District Court to Circuit Court at the request of defendants or their attorneys.

The requests consume three of the 11 courtrooms reserved for all criminal jury trials in the city, forcing delays - sometimes for months - in more serious cases.The three judges handling the Circuit Court's misdemeanor docket can't try more than one case per day, leading prosecutors to dismiss, deactivate or plea bargain out more than 99 percent of the cases and hold on to a scant few for trial.Defense attorneys can reject plea deals in District Court, knowing their clients will most likely get a better offer in Circuit Court, or get off entirely after victims and witnesses tire of postponements and venue changes and don't appear for trial.

Perks for Jurors

2008-10-10T06:14:00.002-04:00

What Recession? Mich. County’s Pagers Will Let Potential Jurors Shop
No-shows for jury duty could soon be much less of a problem in one Michigan county, which plans to distribute pagers in the near future so that potential jurors can shop at downtown stores while they are waiting to be called into a courtroom.

The new system will require prospective jurors in Macomb County to return to the courthouse within 10 minutes of being paged, reports the National Law Journal. It is one of a number of new options and incentives being offered at courthouses around the country, to make showing up for jury service less burdensome.

Disagreement with the 7th Circuit Bar's Jury Study

2008-10-08T05:56:00.003-04:00

A couple of weeks ago I blogged about 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 previously stated that for the most part those who participated in the study viewed the 7 proposals, especially the first 2, as an improvement to 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.

However, as the article below indicates, everyone is not in agreement with this view.

Locals Disagree with Jury Report
Jurors typically don't want to spend their day at the courthouse.They would rather be at their jobs than making a small amount of money participating in a trial that can sometimes take weeks, said Iowa City attorney Mark Thompson.To avoid interminable days of unmotivated deliberation, courthouses should limit the length of a jury trial. This is just one of the American Bar Association jury principles questioned in a report released last week. But this and other conclusions have come under criticism from local law authorities, saying that they aren't feasible and possibly reckless.The report, conducted by the 7th Circuit Bar Jury Project Commission, tested seven of the bar association's 19 multipart principles to test their usefulness. Overall, the commission's executives determined that the 434 jurors and 86 attorneys who responded to the tested concepts thought positively of them.

Would You Want a Governor on Your Jury?

2008-10-07T14:53:00.002-04:00

Governor Of Kansas Reports For Jury Duty
A Kansas woman was summoned for jury duty. And unlike so many people, she was thrilled. She said she would love to serve on a jury. She's never done it.The woman reported to the Shawnee County courthouse. She was part of the jury pool for a personal injury lawsuit. But she knew the plaintiff's attorney, so she was excused. And after that brief pleasant interlude, Kathleen Sebelius had to return to her day job as governor of Kansas.

For a more in depth discussion of this topic seeEven governors get called for jury duty

Will the States be the First to End Peremptories?

2008-10-06T05:35:00.003-04:00

Texas Supreme Court Decision Could End Peremptory Strikes in Jury Selection
A recent decision (Davis v. Fisk Electric Co., No. 06‑0162) by the Texas Supreme Court regarding peremptory strikes could reshape the state's jury selection process. "As these strikes have outlived their original purpose, it is time we did something about them," Justice David Brister wrote in a concurring opinion released Sept. 26.

Don Cruse in his Supreme Court of Texas Blog states that "I presume Justice Brister meant that the practice could be ended by rule-making rather than by the Court striking down its own rule of procedure as being unconstitutional. Batson cases have been relatively rare in the Texas Supreme Court, so this law may develop more through rules or legislative changes."

Meanwhile in Louisiana, Lawyers Target Jury-Cuts Statute
Attorneys for a black Marrero man whose murder conviction and death sentence were overturned (State v. Harris) on grounds that a black man was cut from the jury want the courts to declare the state law that allows such cuts unconstitutional. Edward Irvin Harris' attorneys allege Jefferson Parish prosecutors systematically cut black residents from serving on juries, violating both a defendant's right to a fair trial and African-Americans' right to jury duty. Prosecutors deny it, calling it a "scurrilous" accusation.

OJ Juror Questionnaire Update #3

2008-10-05T20:59:00.002-04:00

The completed OJ Juror questionnaires were released yesterday (see the article below). For more information about the legal dispute surrounding the release of the questionnaires go here.

5 O.J. Simpson Jurors Disagreed With 1995 Acquittal
Jury questionnaires released Saturday revealed five of the jurors in O.J. Simpson's Las Vegas, Nevada, robbery trial said they disagreed with the 1995 verdict where he was found not guilty of two murders.

Jury questionnaires released in O.J. Simpson's robbery trial reveal diverse work and life backgrounds. All 12 jurors had previously heard about Simpson and all but one knew about his acquittal 13 years ago in the Los Angeles, California, stabbing deaths of his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman.

'Payback,’ OJ lawyer Says of Verdict
According to OJ's lawyer, Yale Galanter, jury bias will serve as the cornerstone of their appeal. However, at least one juror has stated that O.J.'s past never came up during deliberations (Juror in Simpson Case Says the Past Was Never Discussed)

Following Instructions

2008-10-03T15:35:00.014-04:00

Are you one to plow full speed ahead when putting something together? Or, are you someone who first reads and follows instructions before starting any project no matter how mundane or simplistic? In the world of scientific jury selection it apparently matters at least according to John Reeves the attorney for Mayor Frank Melton. Mr. Reeves wants U.S. District Judge Dan Jordan to ask potential jurors in Mayor Melton's upcoming trial whether they read directions before putting together a barbecue grill or child's toy.

Mr. Reeves goes on to state "[w]ould a juror be inclined to read juror instructions and do what the judge tells them to do? Or would they (just) say he's guilty or not guilty. I view all the questions submitted to be designed to make sure that a potential juror can be fair and that the juror would analyze all of the facts and that the juror would accept the law given by the court. I think all these questions are geared toward that."

Mr. Reeves may also be interested in these types of questions because they will help him find jurors that share his client's approach to fixing problems. Not known for holding back or strictly adhering to rules and regulations, Mr. Melton has been anything but traditional in his tenure as the crime busting mayor of Jackson. In fact, it was the Mayor's alleged disregard of proper procedures during a so-called drug raid that caused the U.S. Attorney to bring the current charges (violation of constitutional rights and possession of a firearm) against him.

Meet Mayor Melton
Is the Jackson, Mississippi mayor too passionate?
"Since taking office last year, Melton has appointed himself a sort of official vigilante. Wearing a bullet proof vest and pistols, Melton often patrols inner-city Jackson, puts up road blocks, and goes on drug raids. His tactics have been criticized as heavy handed, even possibly illegal. Melton says he has no intention of stopping."

For information about the trial go here
Meeting on Melton Jury Held in Open Court

State Jury List

2008-10-01T20:17:00.006-04:00

Following in the footsteps of states like Indiana, Pennsylvania has created a state wide jury list, which contains the names of 11.5 million Pennsylvanians who either vote, pay taxes or receive welfare or food stamps and are 18 and older. According to the Chief Justice of the Pennsylvania Supreme Cort Ronald D. Castille, "[w]e created the statewide jury list with the aim of helping county courts identify more potential jurors to include in their jury pools." Pennsylvania counties will not be required to use the list; however, it is expected that most will. Other states addressing this issue have considered using the names of those who either subscribe or use cable or some type of utility.

OJ Juror Questionnaire Update #2

2008-10-01T05:31:00.003-04:00

Judge Will Release Simpson Jury's Questionnaires
The judge in the O.J. Simpson armed robbery-kidnapping case plans to release redacted jury questionnaires once the trial ends and is defending her decision not to release the full surveys immediately.

"If juror questionnaires were released during this trial, there is a substantial probability that the defendants' right to an impartial jury would be prejudiced by the publicity that releasing such would generate," Nevada Attorney General Catherine Cortez Masto argued in a response filed Tuesday on behalf of Clark County District Court Judge Jackie Glass.

Masto was responding to an emergency motion filed earlier this month by media organizations asking the Nevada Supreme Court to review Glass' decision not to release the questionnaires.
The Associated Press and Stephens Media LLC, the owner of the Las Vegas Review-Journal, are seeking immediate access to the questionnaires completed by the 12 jurors and six alternates seated in the case.

Stephens Media, LLC v. Dist. Ct. (State) (52399)

Plumbing the Internet for Juror Information

2008-09-30T06:03:00.002-04:00

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...

Juror Questionnaires in South Dakota

2008-09-29T06:00:00.000-04:00

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...

Jurors Point Out Flaws

2008-09-28T08:36:00.002-04:00

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...

The 7th Circuit Bar Looks to Help Juries

2008-09-27T09:02:00.008-04:00

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.

Jurors and Legal Terms

2008-09-26T15:43:00.005-04:00

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...

6th Circuit Finds Systemic Exclusion

2008-09-25T05:00:00.001-04:00

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
here.

Dispute over all-white jury leads to new trial

Australian Juries

2008-09-24T20:28:00.003-04:00

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...

How to Stop Jurors From Conducting Online Research

2008-09-22T06:03:00.002-04:00

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". ..

Update on OJ Juror Questionnaire

2008-09-21T09:54:00.002-04:00

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!)...

Scottish Juries

2008-09-19T16:34:00.005-04:00

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

The Less Educated Are More Likely to Serve on Juries

2008-09-18T15:23:00.006-04:00

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...

Law Enforcement Officers Serving as Jurors

2008-09-17T16:07:00.002-04:00

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...

Do You Listen to the John and Ken Show?

2008-09-16T15:38:00.003-04:00

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 ...

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

2008-09-15T14:16:00.006-04:00

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.

Swearing in the Jury

2008-09-14T10:00:00.007-04:00

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.

Juries in Canada, Russia and the UK

2008-09-13T07:50:00.003-04:00

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.

Juror Privacy in CA

2008-09-11T20:41:00.003-04:00

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?

2008-09-11T19:36:00.010-04:00

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.

Volunteering for Jury Service

2008-09-10T08:17:00.003-04:00

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....

Informing Defendants About Questions Raised By Jurors

2008-09-09T17:06:00.004-04:00

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.

Michigan Jury Reforms

2008-09-08T14:39:00.001-04:00

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...

Jury Report Released

2008-09-07T20:23:00.003-04:00

Baltimore Juries

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

CSI effect: Not guilty!

2008-09-06T07:41:00.005-04:00

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...

Jury Conference--Oct 24th

2008-09-05T18:54:00.004-04:00

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
Faculty Schedule/Agenda Registration Information

September is Juror Appreciation Month in Wisconsin

2008-09-03T16:12:00.003-04:00

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.

New Jury Scholarship

2008-09-02T15:59:00.005-04:00

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).

The Media's Right to Juror Information

2008-09-01T07:27:00.002-04:00

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.

Irish Juries

2008-08-31T19:21:00.003-04:00

Think Tank: Jury Rules Do Not Do Us Justice
...The fact that Ireland has escaped such mishaps does not mean that our system of trial by jury is above scrutiny. As the entitlement of the jury to deliberate in secrecy is rightly considered to be a sacrosanct part of our legal system, a review of the quality of their decision making is not possible. But we can analyse the composition of such juries to check if they meet the key objective of being representative of society.

Of great concern, then, is the fact that large numbers of Irish professionals are either ineligible for jury service or enjoy the right to be automatically excused. The result is that few professionals ever enter a jury box. While it is understandable to exclude prison officers, lawyers and gardai on the basis that such occupations are directly related to the administration of justice, it is difficult to know why vets, pilots, nurses and dentists are being excused...

Prosecutors Respond to Defendant's Claim of Jury Misconduct

2008-08-30T07:23:00.004-04:00

Evidence rules nix Noe's bid for a new trial, prosecutors say
An affidavit claiming juror misconduct accompanying Thomas Noe's motion for a new trial cannot be considered under Ohio's Rules of Evidence, so the onetime Republican Party insider's request for a new day in court should be denied, the Lucas County Prosecutor's Office said yesterday...

Juries in Baltimore: Can They Be Fixed?

2008-08-29T08:38:00.010-04:00

Rebuilding Trust is Key to Making Juries Work
I can't say I'm surprised at the way my reaction to the Abell Foundation's jury study has been presented ("Jury study raises hackles in city," Aug. 18). Controversy does sell papers. But unfortunately, citizens are again being given a distorted view of a very serious issue. Many of us in the criminal justice system already know what the Abell study has concluded - that Baltimore juries are less likely to convict defendants than juries in Howard, Anne Arundel and Baltimore counties.But the study glossed over some of the issues affecting jury decisions. And as the editorial "And justice for all?" (Aug. 21) noted, one critical issue here is citizen trust in law enforcement...

For more information on the Abell report see the following:

Jury study targets very real problemBaltimore Sun, United States - Aug 21, 2008According to reporter Julie Bykowicz's disturbing article on the findings of the Abell Foundation's jury study, Baltimore State's Attorney Patricia C. ...
And justice for all?Baltimore Sun, United States - Aug 21, 2008Witness intimidation in Baltimore had become such a threat to prosecuting criminals that State's Attorney Patricia C. Jessamy led a campaign to better ...

Fearful Witnesses, Juror Doubts Work Against Cases
Darryl Neal pleaded guilty to having a loaded handgun in his maroon Acura in South Baltimore's Curtis Bay neighborhood. Maurice Turner pleaded guilty in connection with a shooting that left two men injured in Park Heights.Both suspects had initially been charged with crimes that carried hefty sentences - five years without the possibility of parole for Neal and life in prison for Turner. Both got plea deals and ended up serving far less time. Neal was sent home on 30 months' probation and Turner is in prison for five years.The reasons prosecutors had to accept pleas in those cases - questionable police conduct and uncooperative witnesses - are at the crux of a debate that has long raged through the city and gained even more prominence with the emergence of an Abell Foundation report that publicized what everyone already knew: Convictions are easier in the suburbs than in Baltimore.

Jurors and Jumpsuits

2008-08-28T06:11:00.003-04:00

Jail attire can sway jurors, lawyers say
When Scott Peterson and O.J. Simpson appeared at hearings leading up to their respective murder trials, they consistently donned suits, not the jail-issued jumpsuits they were required to wear between court appearances. The judges concluded that if prospective jurors saw them on TV in jail threads, they might be left with impressions of guilt. Monterey County Superior Court Judge Russell Scott applied the same logic Wednesday when he broke with tradition in the county court system, ruling that Carmel Valley double-murder defendant Jack Kenney can wear street clothes at his pretrial hearings, which so far have attracted hordes of news photographers for both print and video...

Jury Selection/Service Pointers

2008-08-27T16:20:00.003-04:00

Phoenix DUI Cases - Part III - Jury Duty
Phoenix DUI lawyers who practice regularly in Phoenix Municipal Court understand that knowing the system and how the court works goes a long way towards securing drunk driving clients the best possible result. In previous articles, we examined the pretrial procedures for DUI cases in Phoenix. In this article, we discuss the first stage of a trial, jury selection.

What's Your Juror Taking?
As the percentage of Americans taking various medications skyrockets, some jury consultants and lawyers have begun asking potential jurors what kinds of medications they are taking.They're concerned about potential side effects associated with medications that can affect a person's ability to concentrate, sit for long periods of time and otherwise act as jurors.A secondary reason for asking is strategic — to bounce jurors they don't want and use medications as an excuse.

Jury Service 102: The lesson
This is the second article in my two-part series on Jury Duty. In Jury Duty 101, I reviewed the history of the jury system and important facts about before the date of jury service. In this part, I will discuss what happens during your jury service.It's 9 a.m. and you have parked in the correct garage, walked to the courthouse, passed through security and made it down to the basement of the courthouse. You enter the jury assembly room and check in. The jury commissioner provides orientation explaining jury selection procedures. If time permits, you will be shown a jury orientation video.

Explaining Hearsay to Jurors

2008-08-26T06:13:00.003-04:00

U.S. v. Curry (7th Circuit Court of Appeals)

The court later received a question from one of the jurors, asking, “Why do some witnesses get to tell the Court what someone else said, like tellers can say what another teller said, but some witnesses can’t say what another person says, like the defendant couldn’t say what his brother said?” The judge gave a lengthy (four pages of trial transcript) answer to the jurors about the hearsay rules. Afterwards, Curry’s attorney requested a sidebar, and moved for a mistrial, based on the court’s answer. The jury found Curry guilty, and he appealed. To read more go here.

Juror Misconduct

2008-08-25T06:33:00.003-04:00

Coingate defendant Wants New Trial

Attorneys for convicted coin dealer Thomas W. Noe want a new trial because the jury foreman has said that jurors were confused by the evidence and found Noe guilty just to "get it over with." The defendant's motion can be found here.

10th Circuit Hears Oral Argument About Juror Racial Comments

Interpreting a federal law that protects the sanctity of the jury deliberation process is at the heart of an appeal heard Wednesday by U.S. 10th Circuit Court judges...The three-judge panel from the Denver-based court peppered both presenting attorneys with questions on the decision by Utah's U.S. District Court to throw out the assault conviction of a Native American man after racially charged comments made during jury deliberations in his trial were brought to light. Utah's U.S. Attorney Brett Tolman appealed that decision.

International Jury News

2008-08-24T18:47:00.004-04:00

Jury Nullification in Canada
I've got a secret to tell you. It's about jurors. Jurors called for duty on criminal cases have a secret power. It's a secret because in a trial neither the judge nor the lawyers are allowed to tell the jurors this power exists. But it does. It's called "jury nullification."
It doesn't mean the jury gets nullified. It means the jury can nullify a law or nullify the application of a law to a specific case. Jurors can use this power if they believe a law is unjust or that the application of the law to the case would be unjust...

Juror Intimidation in the UK
More than 100 threats a week to witnesses and juries...

Major Jury Changes in Australia
RADICAL reforms to Queensland's legal system will enable criminal cases deemed too notorious or complex to be tried by a jury to be instead tried by a judge. The changes, to be introduced into State Parliament next week, will also avoid expensive retrials because of hung juries by allowing majority verdicts...

New Jury Scholarship

2008-08-19T19:01:00.003-04:00

1. Gabriel Thornton, Case Comment, Criminal Law--Jury's Silence on Theory of First Degree Murder not an Acquittal for Double Jeopardy Purposes (Commonwealth v. Carlino, 865 N.E. 2d 767, 2007), 41 Suffolk U. L. Rev. 1001-1008 (2008).

2. Elizabeth Dale, People v. Coughlin and Criticisms of the Criminal Jury in Late 19th Century Chicago, 28 N. Ill. U. L. Rev. 503-536 (2008).

3. Irwin Horowitz, Jury Nullification: An Empirical Perspective, 28 N. Ill. U. L. Rev. 425-451 (2008).

4. Paula L. Hannaford-Agor, Judicial Nullification? Judicial Compliance and Non-Compliance with Jury Improvement Efforts, 28 N. Ill. U. L. Rev. 407-424 (2008).

5. Kirk Schuler, In the Vanguard of the American Jury: A Case Study of Jury Innovations in the Northern District of Iowa, 28 N. Ill. U. L. Rev. 453-501 (2008).

6. Katherine Georger, Note. Sentencing and Its Discontents: Cunningham v. California and the "Unreasonable" Erosion of the 6th Amendment Right to Trial by Jury and Determinate Sentencing Schemes, 43 Gonz. L. Rev. 701-723 (2007/08).

Hot Tubbing

2008-08-12T19:46:00.003-04:00

The NY Times has a very interesting article about expert testimony. While it is a little afar a field for this blog, I want to mention the piece because it touches upon juries and how experts are used in other Common Law countries. Basically, the article details the difficulties that arise in American courts when both jurors and judges receive conflicting expert testimony. According to the article, this battle of the experts is less of a problem in other Common Law countries because in many instances experts are selected by judges and are meant to be neutral and independent.

The article goes on state that those Common Law countries allowing opposing parties to select their own experts are likely to follow the Australian practice of "hot tubbing" or "concurrent evidence." In hot tubbing, experts are chosen by opposing parties but they testify together at trial. The experts have more of a dialogue--responding to questions from judges and lawyers and looking for a common ground. According to Justice Peter McClellan of the Land and Environmental Court of New South Wales, experts "are able to more effectively respond to the views of the other expert or experts" and "you can feel the release of the tension which normally infects the evidence gathering process."

New Developments in the Wecht Case

2008-08-05T14:55:00.007-04:00

Last Friday, a three judge panel finally issued its precedent setting opinion on the issue of juror anonymity in the mistrial of Dr. Cyril Wecht on charges of corruption. As previously discussed here, this opinion overturns the prior trial judge's sua sponte order to impanel an anonymous jury. The 118 page opinion, which follows up the panel's earlier January emergency order, is well worth the read for those interested in the issue of anonymous juries and the right of the public/media to information during trials. As most will recall, it was the local media that was leading the charge to have the trial judge's ruling overturned. For more information about the ruling see the following links:

Appeals court: Wecht jurors must be identified
Wecht jurors' names must be made public
Court rules names of jurors must be public
Media has right to know who sits in the jury box, appellate court ...

In other developments, attorneys for Dr. Wecht argued yesterday before the 3rd Circuit that any retrial would violate the provisions of the Double Jeopardy Clause. Dr. Wecht's first trial resulted in a mistrial when the judge determined that the jury was deadlocked. Generally speaking, placing a defendant twice in jeopardy for the same offense violates the 5th Amendment. However, like most other rules, the Double Jeopardy Clause has numerous exceptions. For example, if the judge declares a mistrial because of "manifest necessity" retrial of the defendant on the same charges does not violate the 5th Amendment. Here, the defense attorneys argued that "manifest necessity" was not present because the trial judge had other options to explore before declaring a mistrial, e.g., question jurors or consult with attorneys.

In the typical case, the lack of "manifest necessity" is a tough argument to make. Courts of appeal for the most part don't want to second guess trial judges on this issue. However, the Wecht case has been anything but typical. And, if Judge Franklin Van Antwerpen's comments ("This isn't the fault of the jury. This is the fault of the judge") during oral argument are any indication of how the panel will rule, the government might wish it had never decided to retry Dr. Wecht. For more information on this topic see the following links:

Judges hear Wecht oppose retrial
Panel criticizes Wecht judge
Appeals Court To Decide If Cyril Wecht Has Retrial
Wecht's lawyer asks appeals court to dismiss case -

International Jury Developments

2008-07-29T20:37:00.003-04:00

Lately, there have been several interesting articles about jury related issues occurring outside of the U.S..

The Australian News discusses the actions of a rogue juror who independently met with the defendant during deliberations. This resulted in the trial being aborted. I assume this is similar to a mistrial.

Meanwhile, the Jamaica Gleaner examines a new government initiative calling for non-unanimous jury verdicts in non-capital cases. Not surprisingly, this push for non-unanimous verdicts some as low as 9-3 comes on the heels of increased criminal activity in Jamaica.

Finally, the Georgian Times has an article about the introduction of juries to the Republic of Georgia. Most are aware that countries like Japan and South Korea have or will shortly introduce the jury system to their respective countries. However, few realize that Georgia the former Soviet Republic will also test out its own jury in 2009.

Batson and the 9th Circuit (Green v. LaMarque)

2008-07-20T16:36:00.006-04:00

Last week, the 9th Circuit continued its pattern (at least since 2005) of overturning California criminal convictions because of improper or flawed jury selection. In Green v. LaMarque, the Court found that the prosecutor improperly used his peremptory challenges to exclude six African-Americans from the jury panel.

As most are aware, Batson v. Kentucky provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was improperly based on race. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

In Green, the 9th Circuit determined that the California Court of Appeals "failed to reach step three in the Batson analysis." The Court went on to say that "the [trial] court never fulfilled its affirmative duty to determine if the defendant had established purposeful discrimination." The Court then proceeded de novo to conduct that type of review. Ultimately, the Court determined that the grounds proffered by the prosecutor for striking one of the Black jurors (Deborah P.) were equally applicable to white jurors who nonetheless were seated on the jury.

For more background information on the case see:
Court Rules Prosecutor’s Peremptory Strikes Were Racially Motivated

Court finds racial bias in jury selection

Jury Selection in Child Sexual Assault Cases

2008-07-14T20:19:00.004-04:00

In order to examine the process and problems of prosecuting child sexual crimes, the Kansas City Star is running a series of articles about the four-day trial of David A. Brake. The trial was held in open court and accessible to the public beginning May 21. The most recent installment examines the difficulties that arise in selecting potential jurors. The article illustrates the problems that both defense attorneys and prosecutors face when trying to select jurors by highlighting how potential jurors react and deal with tough questions about allegations of sexual assault against children.

Juror Questionnaires

2008-07-09T20:49:00.002-04:00

•If you moved to New Hampshire, why did you move here?

•If you watch television, list your three favorite shows.

•Do you vote regularly?

•If you use the internet, what websites do you frequent?

•How afraid are you of becoming a victim of a serious crime?

•What do you think of the death penalty? (Multiple choice, ranging from "strongly favor" to "no opinion.")

Only 137 (the most recent OJ trial juror questionnaire only had 81 questions) more to go if you are lucky enough to be considered for the Jay Brooks' capital murder trial scheduled for early fall in New Hampshire state court. Apparently, the attorneys on the case wanted eight additional questions but the judge deemed them overly intrusive as they covered areas like political party affiliations, use of bumper stickers, letters to the editor and philosophical leanings.

For more information about the 30 page questionnaire see the following news articles:
Lawyers seek details on jurors
Getting to know your jurors
Screening begins for hundreds of potential jurors

On the federal side, the Philadelphia Daily News reports that attorneys for State Representative Vince Fumo and the government are meeting with Federal District Judge William Yohn to hash out exactly what questions will be put to prospective jurors in the defendant's upcoming trial for obstruction, fraud and tax related offenses. Apparently, defense counsel is really interested in finding out whether potential jurors view politicians as trustworthy or untrustworthy.

Release of Juror Information

2008-07-07T20:58:00.005-04:00

Today, the North Dakota Supreme Court decided Forum Communications Company v. The Honorable John T. Paulson. This case was brought by a media outlet interested in obtaining additional juror information. Specifically, the plaintiff wanted to learn the last name 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. The case involved the murder of a local college student and had been well publicized, so much so that it had already had one change of venue.

The ND Supreme Court relying extensively on Press Enterprise agreed with Forum Communications 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 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.

Wecht Update

2008-07-05T19:12:00.005-04:00

Regular readers of this blog know that the Wecht prosecution and trial has been a godsend for those interested in jury-related legal issues see e.g., here and here. The latest turn involves a reunion of sorts with Wecht and some of the jurors who served on his first trial. Here is an article discussing the recent get-together.

A message on PNC Park's electronic scoreboard welcoming a special group to a recent baseball game went unnoticed by those it was intended to honor. That's because Dr. Cyril H. Wecht, along with five jurors who voted to acquit the former Allegheny County coroner at his federal public corruption trial, still were tailgating in the parking lot.

To continue reading go here

Jurors and Dictionaries

2008-07-02T17:54:00.017-04:00

The issue of jurors using or requesting dictionaries appears to arise every couple of months. We saw it in the Governor Ryan, Scooter Libby and Moussaoui trials and will probably see it more in the future as technology advances and dictionaries become more accessible (think Iphones). The latest example of a jury searching for definitions involves a civil trial in South Dakota.

In that case, the jury during deliberations sent a note to the judge asking for a definition of the phrase "imminent apprehension of such contact." The judge refused to define the phrase and told the jurors that they should rely on existing instructions. Later on, the jurors sent another note to the judge requesting a dictionary. This request was also denied. However, one stealthy juror took it upon his/her own to sneak a dictionary into the jury room. This in turn led the judge to individually question each juror to determine the extent, if any, of the dictionary's influence on deliberations.

Generally speaking, use of a dictionary by a juror is not per se prejudicial. Like with most extrinsic influences, courts take a case by case approach to determine whether the proceedings have been improperly influenced by the dictionary. Some of the factors courts have traditionally considered when grappling with this issue are as follows:

(1) whether the dictionary was used to look up legal or non legal terms;

(2) whether there was a significant difference from the definition given in the instructions and one found in the dictionary;

(3) whether the jurors substituted the dictionary definition for a term given in the instructions;

(4) whether the dictionary was discovered before the verdict was reached; or

(5) whether any party was prejudiced by the jury's use of the dictionary.

I believe the problem of jurors relying on dictionaries could be greatly reduced if all jurisidictions permitted juror questions during trial and jury instructions included understandable and simplfied definitions.

New Jury Scholarship

2008-06-27T12:35:00.002-04:00

1. Benjamin Kurtz, Supreme Court Upholds a Mandate of Death When the Jury is in Equipoise: Challenged Under the Apprendi Interpretation of the 6th Amendment (Kansas v. Marsh, 126 S. Ct. 2516, 2006) 2008 U. Ill. L. Rev. 1101-1124.

2. W. Wendell Hall and Mark Emery, The Texas Hold Out: Trends in the Review of Civil and Criminal Jury Verdicts, 49 S. Tex. L. Rev. 539-610 (2008).

3. Honorable Janet Bond Arterton, Unconscious Bias and the Impartial Jury, 40 Conn. L. Rev. 1023-1033 (2008).

4. H. Mitchell Caldwell and Thomas W. Brewer, Death Without Due Consideration? Overcoming Barriers to Mitigation Evidence by "Warming" Capital Jurors to the Accused. 51 How. L. J. 193-250 (2008)

MSU's Trial Practice Institute

2008-06-25T09:18:00.003-04:00

Here is a press release discussing cutting edge interdisciplinary work on juries conducted at Michigan State University's Fieger Trial Practice Institute. To date, they have produced works on jury decision making to include nullification.

New Scholarship on Juries

2008-06-24T06:34:00.003-04:00

1. Michael Antonio, See No Evil, Hear No Evil: An Argument for a Jury Determination of the Enmund/Tison Culpability Factors in Capital Felony Murder Cases, 27 St. Louis U. Pub. L. Rev. 235-264 (2007).

2. Ethan Leib, A Comparison of Criminal Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629-644 (2008).

3. Right to Trial by Jury (People v. Gajadhar), 24 Touro L. Rev. 351-367 (2008).

Hurricane Katrina and Jurors

2008-06-15T11:39:00.012-04:00

Today, the New Orleans' newspaper, Times-Picayune has an article (Jefferson Parish Juries Going Soft?) on the local criminal jury conviction rates. According to the article, the rates (save for 2006) are far lower than pre-Hurricane Katrina. However, the overall rate of convictions by jury and judge as well as guilty pleas has remained steady at 88% to 89%.

81% 2007

93% 2006

82% 2005

88% 2004

The article goes on to discuss possible factors for the the lower rates (surprisingly, demographics is not one of them).

1. The loss of veteran prosecutors in the DA's office

2. Greater tolerance by jurors

3. The CSI effect

4. Cyclical patterns

5. Witnesses no longer in the local area

6. Witness intimidation

What I find most interesting about this article is the notion of an optimum conviction rate for criminal trials. Who sets this rate and what is too high or too low? In Japan for instance, the prosecution, which relies heavily on confessions, has a 99% conviction rate. Arguably, this was one reason for the return, after a 65-year absence, of jury trials to Japan. The same might be said for South Korea. In contrast, does an arguably low conviction rate of 73% (Gibraltar) constitute a need to curtail or reform the jury?

While I think very high or very low jury conviction rates (whatever they may be) need to be examined, they alone should never lead to changes in the jury process because of the many variables involved in rendering a verdict.

Jury News

2008-06-12T08:11:00.002-04:00

1. Bored Jurors
Juries who behave badly are just relieving the boredom
Few answers to trial fatigue

2. Raising Juror Pay in PA
Time for a Raise

3. Facebook Group Could Taint Jury Pool
Could they derail justice?

4. Underrepresented Latino Jurors (Previously discussed here)
Lawsuit Thrown Out Over Underrepresented Latino Jurors

5. Allegations of Improper Contact with Jury Foreman and Non-Juror
Lawyers for 3 ask judge to look at talk in ’93 trial

6. Listening in on Juror Conversations
Parties in Ky. fraud case eavesdropping