The presumption of innocence explicitly forbids jurors from using official suspicion or indictment as evidence of guilt in a criminal trial. A behavioral experiment tested whether jurors follow this prescription. It revealed that, compared to when an individual had been merely named, jurors thought the individual was significantly more likely to be guilty after a detective referred the case to the district attorney, and when the individual was formally charged and thus a criminal defendant. A judicial instruction to presume innocence reduced jurors’ beliefs about the defendant’s guilt. Regression analyses indicated that jurors’ priors predicted their posteriors, and further that their priors were predictive of verdicts even after accounting for their posteriors. The findings suggest that jurors make different assumptions about the guilt of a criminal defendant prior to the introduction of evidence, and that these assumptions influence their overall evaluation of the case as well as their verdict.
Consistent, accurate and understandable jury instructions are critical to the determination of damages in patent cases. In January 2016 the Federal Circuit Bar Association (“FCBA”) amended its popular model jury instructions. Among other things, the 2016 amendments substantially reframed the instructions regarding the calculation of reasonable royalty damages in patent cases, replacing the fifteen “Georgia-Pacific” factors with a streamlined set of three factors emphasizing the value contribution of the patented technology to the overall product and comparable license agreements. This Essay discusses the history and implications of the FCBA instruction change for reasonable royalty damages. It assesses the adherence of the reformulated damages analysis to the Federal Circuit’s rulings regarding damages calculations in Ericsson v. D-Link and other recent case law, and compares the FCBA instruction with corresponding instructions developed by the American Intellectual Property Law Association (“AIPLA”) and the Northern District of California. We also present new empirical data regarding the use and adoption of model jury instructions in cases in which reasonable royalty damages are adjudicated. We find that a wide variety of instructions are used, partially defeating the goals of consistency and efficiency that model instructions seek to achieve. We conclude by recommending that the Federal Circuit endorse a single set of model jury instructions for patent cases, and that it consider the new FCBA instructions for this purpose. We also urge the FCBA and other organizations developing model jury instructions to continue to emphasize the traditional incremental value approach to patent valuation, and to develop additional jury instructions addressing issues raised by standards-essential patents.
The Seventh Amendment to the US Constitution and provisions of most state constitutions guarantee citizens the right of trial by jury in common-law civil cases. But it is beyond dispute that the civil jury trial is a vanishing feature of the American legal landscape. In 1962, juries resolved 5.5 percent of federal civil cases; since 2005, the rate has been below 1 percent. In 1997, there were 3,369 civil jury trials in Texas state courts; in 2012, even as the number of lawsuits had risen substantially, there were fewer than 1,200. Similar trends are evident in states across the nation.
What are the causes of the civil jury trial’s near extinction? What are the consequences—for the legal system and society more broadly? And for those who advocate preserving and revitalizing the civil jury trial, what steps might be taken? These will be the core areas of inquiry for the new Civil Jury Project at NYU School of Law.
The Civil Jury Project will engage in three primary areas of activity.
1. It will undertake an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what institutions currently fill the void.
2. It will create education programs and publicity outlets for studies and policy proposals on the jury trial.
3. It will re-evaluate ways in which juries are constituted and jury trials are conducted. The question is not simply whether there should be a right to trial by jury, but how that right can be exercised consistent with basic commitments to speedy and efficient resolution of civil disputes.
In the spirit of Giving Tuesday, ASTC would like to give something back. We are holding a webinar this Thursday, December 1 that is FREE for all members, past members, and potential members. Join us for “Garbage In, Garbage Out: Recruiting Tips to Ensure High Quality Research”. This webinar is not to be missed! Charli and Adam are the gold standard when it comes to executing a proper recruit. The webinar is using a new, jazzy platform that will enhance your viewing experience. Pre-registration is not required. The webinar will begin promptly at 2:00 pm Eastern so please login early.
On November 16, 2016, attorneys for defendants President-Elect Donald J. Trump and Trump University, LLC filed an ex parte motion to require the U.S. District Court for the Southern District of California to provide them with information regarding the jury selection process in the case. The motion suggests that the court may not be compliant with the Jury Selection and Service Act. The motion further indicates that the attorneys want to be sure that the panel is a “fair cross section” of the community. It therefore seeks the following information.
process for summoning prospective jurors;
any lists and identifying information of prospective jurors pre-screened for hardship, excluded for hardship, and prequalified for jury service in this case.
any questionnaire used or questions asked of the prospective jurors;
who conducted the screening and criteria used;
information regarding randomization before and after screening;
any documents used in the screening process;
any transcript from the prequalification process; and
any information provided to jurors regarding the name or nature of the case.
Counsel for the plaintiff’s filed a motion in opposition. They indicate that the motion is untimely and that the defendant failed to demonstrate “a substantial failure to comply” with the Jury Selection and Service Act.
Midland County, TX Improves Juror Response Rates
News West 9 reported on November 16, 2016 that Midland County, TX has dramatically improved juror response rates with the use of new technology. Response rates used to be as low as 17% but are now up to 70%. The county purchased software from Judicial Systems Incorporated, which allows summoned people to complete juror questionnaires and request exemptions online. County Clerk Ross Bush said, "This new system helps alleviate that problem [the low response rate] because it gives you the freedom, choice and ability to make moves on your own." The system cost the county $90,000.
Supreme Court of Georgia Rules on Juror Questions Issue
The Supreme Court of Georgia issued an opinion in Hernandez v. The State on October 17, 2016. The defendant was convicted of murder and a firearm offense following a jury trial. At the beginning of the trial, the court told jurors that they would be permitted to submit questions for witnesses in writing to the court. Using this procedure, the trial court asked more than 70 questions from the jury; the jurors submitted no questions for some witnesses, while the court asked other witnesses more than ten jury questions. Counsel was given an opportunity to review and object to specific questions prior to the court asking them. Although the defendant objected to the content of a few specific questions, he did not object at trial to the procedure which was utilized. On appeal, he claimed that the trial court erred by soliciting the jury for questions to ask the witnesses and by asking the witnesses so many jury questions.
The Supreme Court of Georgia determined that prior caselaw permitted the procedure for juror questions which was used in this case. The Court stated:
Although trial courts must be cautious in soliciting and asking jury questions, particularly in large numbers, we cannot say that the trial court here deviated from the proper procedure or otherwise abused its discretion as to the jury questions that were asked.
A Jur-E bulletin reader who is also a judge in Georgia pointed out to the editor that although not many Georgia trial judges allow for juror questions, some judges were anxiously awaiting this opinion so that they could experiment with the procedure. He indicated his experience was that, “Jurors routinely express appreciation for the ability to ask questions during trial.”
In Apprendi v. New Jersey the United States Supreme Court established that any finding that increases the maximum sentence to which a defendant may be sentenced is an element of the offense that must be found by a jury beyond a reasonable doubt. Applying that concept in Hurst v. Florida, the United States Supreme Court found that Florida’s death-sentencing scheme, which required a judge rather than the jury to make the ultimate factual findings for imposition of a death sentence, unconstitutional holding that “[t]he Sixth Amendment requires a jury, not a judge to find each fact necessary to impose a sentence of death.”
Hurst left no indication as to whether its holding applies retroactively to death-sentenced individuals seeking post-conviction relief. In federal-habeas review and in some states’ post-conviction review processes, this inquiry centers on applying the federal-retroactivity analysis announced in Teague v. Lane. In Schriro v. Summerlin, the Supreme Court, applying Teague, found that Ring v. Arizona, often considered Hurst’s predecessor case, was not retroactive on collateral review. Summerlin, however, does not settle the matter of Hurst’s retroactivity. First, Hurst’s holding included a proof-beyond-a-reasonable-doubt issue that was not present in Summerlin, and the Supreme Court has traditionally given retroactive application to pre-Teague proof-beyond-a-reasonable-doubt cases. Second, state courts, even those that look to Teague for their retroactivity analyses, are not bound by the federal Teague decisions and are therefore not bound by the jury-trial retroactivity portion of Summerlin. Third, the Court’s application of Teague to Miller v. Alabama in Montgomery v. Louisiana indicates that the United States Supreme Court’s reluctance to hold cases retroactive under Teague may be eroding or that the Court is considering retroactivity under a contextual approach.
This article argues that Hurst is retroactive under Teague to all death-sentenced inmates seeking post-conviction relief. In the first section, this article examines Hurst’s predecessor cases of Apprendi and Ring. In the second section, this article examines Florida’s death-sentencing scheme and the United States Supreme Court’s decision in Hurst. In the third section, this article applies the Teague analysis to Hurst. In sum, Hurst is retroactive on collateral review under a traditional Teague analysis. Recent Supreme Court precedent, however, indicates that the Court’s reluctance to hold new rules retroactive under Teague is eroding or the Court is recognizing “constitutional difference” in its analysis.
Here is an interesting article about how other common law countries (Australia, UK, and Ireland) treat deaf and blind jurors. The article also briefly mentions the work of the UN Committee to the Convention on the Rights of Persons with Disabilities.
The Atlanta Journal-Constitution reported on November 4, 2016 that the Gwinnett County, Georgia Courts have begun using a texting system to keep jurors updated on the status of their service. The system will notify people as to whether or not they need to appear on a given day as well as providing other information. During a recent trial, 96% of jurors opted to receive text information. The vendor the Gwinnett County Courts opted for is TextGov LLC.
Juror in High Profile Case Explains Verdict
The Oregonian reported on November 3, 2016 a story about one of the jurors that acquitted seven defendants in the Malheur National Wildlife Refugeoccupation trial. Although this may appear to be a case of jury nullification, the juror in a series of 4 emails explained to the newspaper that it was actually a case of insufficiency of evidence. The crux of his view seems to be that the prosecution failed to provide any direct evidence of an agreement between the parties to commit crimes, which was a required element of the conspiracy charge. The juror’s emails are very articulate and worth reading.
Video Monitors in the Jury Box
A court manager in a jurisdiction that is now constructing a new courthouse would like to collect some information about video monitors placed in the jury box for viewing video evidence (as opposed to a single monitor on a wall or stand outside the box). For readers with a state wide perspective, how common is this setup in your state? For readers with practical experience with this setup, how frequently are they used, are there significant maintenance issues, is the expense worth the benefit, and is there anything else this court manager should consider in making a decision about obtaining them? Please respond to Greg Hurley at firstname.lastname@example.org and your email will be forwarded.
Attorney General Wayne Stenehjem warns North Dakota residents that the “jury duty” scam is once again circulating in the state.
In this scam, the scam artist calls pretending to be a law enforcement officer, claims the resident has missed jury duty, and threatens to have the person arrested unless they pay a fine immediately.
In some variations of the scam, the supposed officer instructs the consumer to buy prepaid cash cards or gift cards and then read off the numbers from the back of those cards; in other variations, the scam artists offer a “discount” on the supposed fine if the consumer sends cash via overnight delivery.
Stenehjem reminds residents:
No court will ever make calls threatening to arrest someone for having missed jury duty; and
No legitimate government official or law enforcement officer will ever demand that you mail cash, wire money, or buy prepaid cards to pay fines and fees.
There is no need to report having received one of these calls.
On November 4, 2016 the Jamaican Observer reported that the Jamaican Ministry of Justice warned the public that any jury summonses they receive through social media platforms are a hoax. Citizens have been receiving messages which tell them to appear for jury service and keep the communication private. These messages appear to come from a legitimate government domain.
Hawaii Increases Civil Jury Trial Threshold
On November 8, 2016, the voters of the state of Hawaii approved a constitutional amendment which raised the amount in controversy in civil cases from $5,000 to $10,000 before the right to trial by jury attaches.