Juries

Juror Investigations: New Comment

Duncan Stark, Juror Investigation: Is In-Courtroom Internet Research Going Too Far? Carino v. Munzen, 2010 WL 3448071, 2010, 7 Wash. J. L. Tech. and Arts 93 (2011).

Juror Told to Make Facebook Posts Available

Yesterday, the California 3rd District Court of Appeal ruled that a juror (Arturo Ramirez) must make his Facebook posts available to the court.  As some of you may recall, this is an ongoing saga which is unlikely to end with this ruling.  The attorney representing the juror, Kenneth Rosenfeld, has already filed an appeal with the California Supreme Court.   

This issue initially arose from Arturo Ramirez's service as a juror on a criminal trial.  Ramirez along with 11 other jurors convicted several members of the Killa Mobb gang of serious criminal offenses. At the conclusion of trial, attorneys for the convicted defendants were contacted by a juror on the case who claimed that during the trial Ramirez had made and received comments about the case on his Facebook page.

Defense counsel, which issued subpoenas to Facebook and Ramirez, want access to Ramirez's Facebook page. Defense counsel claim that Ramirez's Facebook page, which is not publicly available, will show that he was biased or improperly contacted by outside parties during the trial.  

Facebook, citing the Stored Communications Act of 1986, refused to turn over the postings despite receiving the subpoena.  Facebook, however, said that Ramirez, who has been given copies of his postings, can, if he so desires, give the postings to defense attorneys.  To date, Ramirez has refused to turn over the posts despite receiving the subpoena.  Instead, he filed a petition for a writ of prohibition to vacate the trial court's order requiring him to release the information.  In appealing the trial court's decision ordering the release of the posts, Rosenfeld, stated that "in actuality, I'm defending the privacy rights of 500 million Facebook users--this case has implications for anyone who uses social media." 

For more background on this case go here.

Disqualification for Bias: New Book

Interested in learning more about juror bias?  If so, pick up a copy of Professor John Tarrant's new book Disqualification for Bias. Although Prof. Tarrant's target audience is Australia and other Commonwealth countries, many of the issues he discusses, such as juror bias, have universal application and thus would be of interest to those in the United States. Below is a brief a description of the book and the table of contents.

This book examines the disqualification principle and the test that courts apply in different contexts. The application of the principle is examined in the context of judges, jurors, administrative decision-makers, inquiries, local government, sporting clubs, political decisions, international tribunals and military tribunals.

Disqualification for Bias also examines the remedies available where a person alleges that a decision-maker should be disqualified. Many practical issues are also examined including procedural issues.

A detailed examination of relevant case law and statutes from a number of jurisdictions including Australia, New Zealand, the United Kingdom and Canada is also included.

CONTENTS

The Disqualification Principle

Early History and Modern Developments

Test for Bias

Disqualifying Factors

Exceptions to the Disqualification Principle

Application of the Disqualification Principle

Practical Issues

Remedies

Future Developments and Conclusion

May Edition of the Jury Expert

Here is the latest edition of the Jury Expert which is published by the American Society of Trial Consultants (ASTC).  Also, ASTC is having its annual conference next week in New Orleans.  For those interested in more information about the conference go here.

Subtle Contextual Influences on Racial Bias in the Courtroom

by Karenna Malavanti, Megan Johnson, Wade Rowatt and Charles Weaver, all from Baylor University. 

How well are we managing bias in the courtroom? Four Baylor researchers present research on how subtle religious cues result in more bias against African Americans. (It's actually worse than just African Americans but that's research pending publication so we just get a peek at that.) Karen Hurwitz and George Kich respond with their reactions to the research findings. This is a really disturbing piece of research about which you need to be informed. 

The ‘Hoodie Effect’: George, Trayvon and How it Might Have Happened

by Doug Keene and Rita Handrich from Keene Trial Consulting

A look at how to craft trial narratives for both prosecution and defense presentation by reviewing the social sciences research that may be relevant to the George Zimmerman/Trayvon Martin case. What do we know in terms of the facts released? What does the research have to say? And how can you take that research and combine it with known facts to craft a plaintiff or defense narrative to test in pretrial research? A disturbing but intriguing article on a case in the headlines. 

 

Leveraging Social Media for Litigation

by Amy Singer from Trial Consultants, Inc. 

We are all inundated with social media information. But how do you organize all that information to use it for trial preparation? Amy Singer brings us that knowledge by offering education and information on how-to's for everyone. This is a step-by-step description of the process first used for the Casey Anthony trial. 

10 Tips For Preparing The Crazy Witness For a Media Frenzied Trial

by Katherine James from ACT of Communication

Crazy, out-of-control witnesses? Who better than a 60-year-old, small-statured woman to handle them? That's how Katherine James describes herself in this article but as you read it, you will doubt anyone working with Katherine sees her as small and frail. This is brash and plain-spoken advice earned through much (perhaps a bit too much) experience over the years with this challenging group.

Turning an Expert Witness into a Great Witness

by Doug Carner from Forensic Protection

How do you best prepare expert witnesses? A close observer of expert witness courtroom performance offers his top tips and Stan Brodsky, Elaine Lewis and Ellen Finlay respond and tell us what they might do the same or differently. 

“A Parade of Horribles”—Broccoli, Burial Markets, and Justice Scalia’s Wife: The Role of Analogies in Human Decision-Making from Justices to Jurors

by Ryan Malphurs and Hailey Drescher from Tara Trask & Associates

Ryan Malphurs and Hailey Drescher have been watching the Supreme Court again and this time they are showing us how the Supreme Justices use analogies (to lesser and greater effect) and how we can apply those lessons in analogy to non-Supreme Court presentations.

 

Book Review: Ideology, Psychology, and Law

by Rita Handrich from Keene Trial Consulting

A book review of the latest (encyclopedic) reference on the intersection of the law and mind sciences. Edited by Jon Hanson with 800 pages full of research and application that will leave you breathless and, more importantly, curious.

 

Juror Questions: Why Attorneys Should Embrace Allowing Jurors To Ask Questions of Witnesses

by Andrea Krebel from TrialGraphix, Inc.

Andrea Krebel takes us through the rationale behind juror questions of witnesses and why it makes sense to embrace the practice rather than resist. 

Racism, bias, expert and crazy witnesses and a whole lot more

from Rita Handrich, Editor of The Jury Expert

The past two months have been an interesting time for us. We are pulling articles from the headlines for this issue and taking on provocative and disturbing topics. Go ahead and "click". You know you want to. We want you to as well. 

 

6 vs 12 Civil Jury Demand: New Law Review Article

M. Michelle Dunning, Discernible Differences: A Survey of Civil Jury Demands, 87 Wash. L. Rev. 237 (2012)

Introduction: Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that may explain litigants’ shared preference for traditional juries. I hope that the survey and accompanying exploration will remind us of the “great purposes that gave rise to the jury in the first place.”

Improper Juror Contact: Be Careful What You Tell Jurors

The Volokh Conspiracy blog has an interesting post about a 2004 Iowa Supreme Court case State v. Baker. The case started with the criminal conviction of Greg Shoo who was a friend of Rosemary Baker. Upon learning of Shoo's conviction, Baker called Debra Krause a juror who sat on Schoo's case. In the brief telephone call to Krause, Baker informed her that she gave the defendant "25 years." Although Krause found the call non-threatening, she was nonetheless bothered and upset by it. Thus, she contacted the police and Baker was successfully prosecuted for juror harassment. The relevant Iowa statute reads as follows:

A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person ... [c]ommunicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.

Iowa Code § 708.7(1)(a)(1) (emphasis added).

As discussed by Prof. Volokh, this case raises some important First Amendment questions. It also raises the age old question of whether jurors should have a role in sentencing the defendant. A minority of states allow jurors to play such a role. 

Media Files Motion to Obtain Names of Edwards' Jurors

Several media outlets have filed a motion to obtain the names of the jurors who are deciding the fate of former senator and presidential candidate John Edwards.  According to the clerk of the court for the Middle District of North Carolina, the identities of the jurors can't be released absent permission from U.S. District Judge Catherine C. Eagles who is hearing the Edwards' case.  To see the motion filed by the media go here.

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  

The federal government may soon follow suit if Representative Steve Rothman has his way.  He recently introduced the Juror Non-Discrimination Act of 2012. This bill, known as HR 5848, prohibits the exclusion of individuals from service on a federal jury because of their sexual orientation or gender identity. Similar legislation was introduced earlier this year in Minnesota. 

Those in favor of legislation such as HR 5848 argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation.   

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Jurors in Clemens Perjury Trial Continue to Ask Probing Questions

This only reaffirms my belief that more jurisdictions should allow jurors to ask questions.

Wall Street Journal: Clemens juror: 'Why should we believe you?'

Among the 29 questions the Roger Clemens jury wanted to ask the pitcher's chief accuser, Brian McNamee, one cut to the heart of the case.

"Why should we believe you when you have shown so many inconsistencies in your testimonies?"

"I won't ask that," U.S. District Judge Reggie Walton declared during a bench conference with trial attorneys to decide which juror questions he would read. "That's for them to decide."

The question makes it sound as if at least one of the jurors in the perjury case has serious doubts about the credibility of the government's key witness against the 11-time All-Star pitcher.

Or it could be that the juror believes McNamee, but wanted to play devil's advocate just to make sure...to continue reading go here.

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Jury News

San Antonio Express: Unusual process allows jurors to submit questions for witnesses in ...

The Independent: Juror fined £450 after smoking cannabis on rape trial lunch break‎

ITWire: And then there were 10: Oracle trial loses another juror‎

Aiken Standard: Duty calls: Just call me Juror No. 10

‎Dayton Daily News: Disruptive juror who caused mistrial gets jail time, ordered to pay costs

Montana Standard: Juror skews Montana Power Co. verdict

Salt Lake Tribune: Reform jury system