In light of the fact that the Ferguson grand jury is likely to render its decision in the near future, I thought I would offer some links to sources that provide background information on grand juries.
A federal district court this week, in U.S. v. Liu et. al, upheld the conviction of three defendants two of whom were attorneys for immigration fraud despite the fact that two different jurors sent out trial-related tweets. The first juror was dismissed prior to deliberations so that juror was less of an issue. The second juror was not removed and thus serves as the basis for the defendant's motion for a new trial. In dismissing the defendant's motion the trial judge determined that
When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter "are legion." United States v. Fumo. And because of the risks inherent in such ac- tivity, "vigilance on the part of trial judges is warranted." Ganias, 755 F.3d at 132. On this record, however, Defendants' claim must fail. Juror2 was an attentive juror who,while engaging in banter with fellow Twitter users about her experience, was nonetheless careful never to discuss the sub- stance of the case, as instructed by the Court. The record is devoid of any evidence that she was either dishonest or biased, or that Defendants were prejudiced by her tweets in any way.
I think the trial judge got it right here. In the Digital Age, it is naive to believe that jurors are going to forego social media throughout the trial; it has become too omnipresent. The key is to see if the juror starts to discuss or get into the merits of the case.
Few doctrines in patent law are perceived to be as important as the presumption of validity. Despite its perceived importance, the impact of informing the jury of the presumption has not been examined empirically, but rather has remained the province of assumptions and speculation.
Because the presumption is, at bottom, a procedural device that assigns the burden of proof, the Federal Circuit has held that it need not be included in the jury instructions so long as the jury is informed of the clear and convincing standard for proving invalidity. Underlying this holding is the assumption that the presence or absence of the presumption instruction would not materially affect the jury’s decision-making on invalidity issues. But litigants often view the presumption not simply as a procedural device, but also as a mechanism for influencing the jury with potentially outcome-determinative effects. This mismatch in perception between the Federal Circuit and litigants regarding the impact of the presumption instruction has gone largely unnoticed and unexamined.
This Article reports the first experimental study on the impact of instructing the jury on the presumption of validity. The data reveal statistically significant differences in the rate of invalidation depending on whether the mock jurors were informed of the presumption. Based on this finding, the Article analyzes the selection of a validity baseline in light of both procedural considerations and error costs.
This paper argues there is little reason for a hearsay ban in the absence of jury trial. (1) The ban can’t be supported on the ground, dubious in the first place, that jurors are incompetent to give hearsay proper weight. (2) Excluding hearsay has little effect when the screener and the fact-finder are the same person. (3) Because of the greater influence of judges on the proof process, there is less danger that lawyers will use hearsay evidence strategically to deprive the trier of more valuable evidence. (4) Because judges can be required to explain decisions, assessing output is an alternative to trying to control input. (5) The value of complicated, detailed exceptions as a check on discretion is reduced or eliminated. Overall, there is a great weakening of the arguments that, in a jury system, are advanced as outweighing the principle that it is best for the trier to have access to all evidence that has probative value.
This paper was prepared for presentation at a conference on evidence law reform in developing countries that is to be held in Chicago on Nov. 21-22, 2014. It contains other comments about procedural features of the American judicial system that influence the hearsay ban. It also contains comments on the hearsay provisions of a proposed codification (the Tanzania Evidence Act) that was distributed to participants by Professor Ron Allen, one of the organizers of the conference.
An Iowa appellate court (State v. Webster) overturned a defendant's murder conviction because of improper conduct by a juror to include interacting with the victim's mother on Facebook. Interestingly, it was the defendant's wife who discovered the Facebook information.
The third witness was Webster’s wife, who testified she had heard from a number of people “that there was a particular juror that was discussing things and who had actually said . . . that she knew the Frisbie family, but they never asked her directly, so . . . she didn’t say anything.” Webster’s wife testified she looked at Juror’s comments and activity on Facebook, and Webster’s wife printed the pages she found where Juror had commented or “Like[d]” a post posted on Facebook by Frisbie’s mother.3 The printed pages were offered and admitted into evidence.
Since I live near Cincinnati, I feel compelled to post about the three jurors who are now recanting their prior guilty verdict in the trial of former Judge Tracie Hunter. As a general rule, courts rarely overturn a verdict due to a juror's second thoughts. However, in this case, the defense may have an argument because of how the trial judge polled the jury. As I have discussed previously, courts have routinely overturned a verdict because of improper juror polling by the judge. While the process is fairly straightforward, problems do arise.
In this case, after five weeks of trial and three days of deliberation, the jury told the judge that they had a verdict on one of the nine felony charges but were deadlocked on the other eight. The trial judge then called the jurors into the courtroom and asked them if they had reached a verdict on the one charge and they said "yes." However, the judge never read aloud the verdict on the one charge nor did he individually poll the jurors which is what normally occurs. The guilty verdict form, which had been signed by all the jurors, was then sealed and the jurors went back to deliberating on the remaining eight charges. Ultimately, the jurors never arrived at a unanimous verdict on the remaining charges and the judge declared a mistrial.
Since declaring the mistrial, three jurors, all of whom are Black, now claim in sworn statements that they were pressured by other jurors to vote guilty. The defendant in this case is also Black and many in the community have questioned her prosecution from the beginning believing that it was politically motivated.
The New Yorker has a very good article about the death penalty and how certain jurisdictions allow judges to impose a sentence of death even after the jury has voted for life.
States were allowed to rewrite their death-penalty laws. To satisfy the Supreme Court’s concerns about arbitrariness, Florida’s new version shifted final sentencing authority from jurors to judges—the jury’s sentence became merely an advisory verdict. Florida’s judges were not afforded complete discretion, though; they had to give a jury’s recommendation “great weight” and could exercise override only when the justification for a death sentence was “so clear and convincing that virtually no reasonable person could differ.” Satisfied with these and other changes, the Supreme Court, in 1976, found the statutes in Florida, Texas, and Georgia constitutional. Today, thirty-two states sanction capital punishment.
Alabama modelled a new death-penalty statute on Florida’s and adopted it in 1981, but without the “great weight” and “clear and convincing” safeguards. Alabama required only that a judge “consider” the jury’s sentencing verdict. A jury’s life-without-parole vote—even a unanimous one—was given no statutory standing. As Gordon noted in Shonelle Jackson’s death order, “Neither the Alabama Death Act nor Alabama case authority informs the trial court how it is to consider the advisory verdict.” To continue reading the article go here.
As of late, Texas grand juries have been under a lot of criticism so much so that State Senator John Whitmire has introduced legislation (SB 135) to modify how grand jurors are selected. If SB 135 becomes law, district judges would select grand jury panels instead of a commissioner. Many felt that the panels selected by commissioners were too homogeneous.