Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their applications and discussions of this commonly known but little understood principle of contract interpretation.
Interesting unpublished opinion out of the 11th Circuit Court of Appeals. In Bates v. U.S. a three-judge panel found the following:
Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.
Here is a brief summary of the argument taken from the brief submitted by AIPLA
SUMMARY OF ARGUMENT
One of the Lanham Act’s fundamental functions is to protect consumers from deceit as to the sources of their purchases. It does so by allocating trademark rights among competitors with protectable trademark interests. This division of rights permits consumers reliably to identify the source of goods and services without confusion.
Where similar marks are involved, this allocation of rights is based, in part, on a priority system. Trademark priority rewards the earliest valid use of a trademark in commerce. Consumer impressions of trademarks play a crucial role in deciding priority as between similar trademarks.
In certain circumstances, courts allow trademark owners to tack on to their current period of use an earlier period of using a similar mark to claim an earlier date of first use. The trademark tacking doctrine requires a finder of fact to consider whether the current and former trademark uses are “legal equivalents” in the eyes of ordinary consumers. In other words, do the marks, in their respective iterations, create the same continuing consumer impression in the marketplace?
This determination can only be made by and through the eyes of the consuming public. Therefore, a jury, made up of consumers, is the best judge of whether the relevant facts support a finding of trademark tacking.
Professor Volokh has an interesting post on the Washington Post about using Powerpoint during trial. In the case (State v. Rivera) referenced in Prof. Volokh's post, the prosecutor went over the top with his use of Powerpoint.
I am a big believer in Powerpoint. I have used it both in the courtroom and the classroom. I find it very helpful in maintaining the attention of both students and jurors. I think individuals, especially Digital Natives, are more receptive to visual information that comes to them in an electronic format. I wouldn't do a whole trial by Powerpoint. However, I think it can be quite effective in the Opening and Closing when you are trying to tell a complete story or sum up the facts.
NH Supreme Court says jury nullification statute not really a jury nullification statute.
Last week, the NH Supreme Court in State v. Rich Paul had the opportunity to interpret the state's jury nullification law (RSA 519:23) which was passed in 2012 and reads as follows:
“In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge
the facts and the application of the law in relation to the facts in controversy.”
According to the NH Supreme Court, RSA 519:23 allows the defendant “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” However, the NH Supreme Court went on to opine that the statute does not mean that the defendant can inform the jury that it has the right to judge the law or the right to ignore the law.
The NH Supreme Court wrote:
although RSA 519:23-a requires the trial court to allow the defendant “to inform the jury of its right
to judge the facts and the application of the law in relation to the facts in controversy,” it does not
require the court to allow the defendant to inform the jury that it has the right to judge the law or
the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no
moment that the court’s instructions may have contravened or undermined the defendant’s jury
nullification argument because the statute gave the defendant no right to make such an argument.
This case was brought by the appellant Rich Paul who was convicted of three counts of the sale of an ounce or more of marijuana, one count of possession with intent to distribute an ounce or more of marijuana, and one count of the sale of substance represented to be LSD. Paul appealed his conviction arguing that the trial court failed to comply with RSA 519:23 by declining to give the jury nullification instruction he requested and by giving other jury instructions that contravened his "jury nullification defense."
A Florida trial judge has prohibited a criminal defense attorney from talking to a juror about his guilty verdict. The defense attorney believes that the juror in question might have applied the wrong legal standard in coming up with his verdict. The defense attorney made this determination based on interviews the juror gave to the media after the trial.
In denying the defense attorney's request the judge wrote that
the court finds that the media comments attributed to one juror in Orr relate to matters which inhere in the verdict and are not properly the subject of a juror interview.
Here is one more example of how common juror investigations have become. Last night, it was the plot line for the television show How to Get Away with Murder. In fact, the show had two jury-related plots. The second involved jury nullification.
This Note examines the prevalence of Internet-related juror misconduct in the New Hampshire Superior Court and the efforts of Superior Court judges to detect and prevent such misconduct. I conducted a survey of New Hampshire Superior Court judges regarding their experience with juror Internet misconduct and solicited their feedback about a sample jury instruction. I have incorporated their feedback into a proposed set of jury instructions specifically targeted at reducing juror Internet misconduct.
At least one media outlet in Cleveland is reporting that a paralegal has been dimissed from a murder case because of her Facebook Friends List which included the county prosecutor and other high level officials in the prosecutor's office. Interestingly, it was the prosecution who informed the court about the juror's Facebook Friends List. When this information was initially revealed the defense requested a mistrial but the trial judge decided to just replace the juror and start deliberations over from scratch.
I presume that the juror's Facebook page was private, which is why the defense did not discover the Friends List. If it was available to the public and the defense failed to review the page then the defendant (if convicted) would have had a decent ineffective assistance of counsel claim, especially in light of the fact that this defendant might face the death penalty. Investigating jurors online is increasingly becoming the norm for many attorneys.