The literature on the American jury rarely considers the experience of other nations as relevant case studies. This Article describes how the now over 200-year debate in the United States over the proper role and form of American jury practice can be advanced by looking at the jury practice in the small Mediterranean island nation of Malta. Malta – like the United States – has a British-based jury system of roughly 200 years vintage. But it methods of selecting jurors, empowering jurors, and forming verdicts vary dramatically from the United States. The experience of Malta suggests the United States should reconsider the value of voir dire, should allow jurors to be active and interactive participants during trial, and should reform the standard criminal verdict form.
According to the Seattle Weekly article below, public defenders in Seattle will start filing jury declarations. These declarations will document the racial makeup of each group of jury pools during trial proceedings at King County Superior Court. These declarations will also be put into the court record.
At present, the court does not track jury demographics. The local public defender's office has started this policy in order to document whether juries are truly a cross-section of the Seattle community.
This study compares two Missouri capital cases where evidence of the defendants' personality disorder and childhood abuse history were predominant themes at trial, in order to assess the jurors' receptivity to mental mitigating evidence. The cases confirm theories suggested by Capital Jury Project scholars that jurors engage in arbitrary decision making and premature and automatic death-penalty decisions, that they speculate about parole, and that they are guided by the racial composition of the jury. This study goes one step further to suggest that these errors in decision making can skew death decisions by distracting holdout jurors from considering and giving effect to the mitigation evidence. Some jurors may be more inclined than others to be distracted by arbitrary factors because they focus more on the retributive aspects of the case or the severity of the injury than on defendant's culpability. Juror errors like premature and automatic death-penalty decision making and extralegal considerations about parole and race may drive the majority of jurors to persuade the holdouts to join in a death verdict. These errors may stifle moral considerations of mitigating evidence at deliberations, and they serve as a “counterweight” to the proper weighing of the evidence. The parts of a capital trial, therefore, are linked together and act as weights and counterweights against each other.
Ever wonder what happens when a polled juror disagrees with the verdict in open court? Well, according to the 2nd Circuit Court of Appeals in U.S. v. McDonald, the trial judge just has to tell the jurors to continue to deliberate. In McDonald, the jury announced its guilty verdict in open court. However, during polling, juror #11 failed to confirm that she was in favor of the guilty verdict. This led to a sidebar among the judge and the parties. During this sidebar, the judge told the parties that he planned to tell the jurors to go back to the jury room and continue to deliberate in light of all of the instructions that I have given you. Neither the defense nor prosecution disagreed with these instructions.
The jurors returned one hour later and once again convicted the defendant. When the jurors were polled the second time they were all in agreement with the verdict. The defendant subsequently appealed. Specifically, the defendant wanted the trial judge to instruct [each] juror not [to] abandon any conscientiously held beliefs.
According to the appellate court, it should be clear that the district courtʹs instruction was not an Allen charge at all...The instruction contained no language ʺobligat[ing] jurors to convince one another that one view was superior,ʺ which ordinarily would require the inclusion of further cautionary language...And we find nothing in the context and circumstances of this case that would require the cautionary language despite the absence of any Allen‐type instruction to reconsider oneʹs views...In the circumstances presented by this case, we think that the district courtʹs approach was a prudent one. The courtʹs instruction correctly carried no implication that any juror opposing conviction was obligated to reconsider her views.
Numerous studies have shown that anchoring can have a strong effect on juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led to the maxim “the more you ask for, the more you get.” Still, less scholarly attention has been paid to whether an outrageously high request might undermine the plaintiff’s credibility, adversely affect his or her chances of winning at all. This “credibility effect” may be larger than the anchoring effect.
Likewise, little scholarly attention has considered whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.
To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to the same shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. Plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2 ignoring the plaintiff’s damage demand; or (3) attacking plaintiff’s demand as outrageous and using this characterization to argue that plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.
Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant’s responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.
Long time readers of this blog know that I have am an advocate of allowing juror questions (for previous posts about juror questions go here and here). Well, it looks like the topic is once again in the news. The Boston Globe is reporting that jurors in a Boston federal trial submitted 281 questions for witnesses and lawyers. This large number of juror questions has led the ABA to conduct a poll (or question of the week) on whether or not jurors should be allowed to ask questions. I conducted a similar poll a few years back and was surprised by the number of attorneys who were against the practice. I am hoping that things might have changed. Allowing juror questions goes a long way in keeping jurors from conducting their own research on the Internet.
The Tampa Tribune has an interesting article highlighting the efforts by some defense attorneys to make their clients more presentable to jurors. As the article points out, attractive defendants are less likely to be convicted than unattractive defendants. In certain instances, defense attorneys go beyond just putting a suit or some nice clothes on the defendant. For example, some defendants are instructed to put on glasses or use make-up to cover inflammatory tattoos.
Currently, Massachusetts is considering whether or not to change the way it conducts voir dire. At present, Massachusetts uses judge conducted voir dire. However, the Massachusetts House has passed legislation (H. 4123) to allow attorneys to conduct voir dire. The bill is now being debated in the Massachusetts Senate. It appears that the biggest argument against passing the legislation is increased costs.
To read more about the pros and cons of attorney conducted voir dire go here.
Civil jury service should be a potent form of deliberative democracy, creating greater civic engagement. However, a 2010 seven-state study of jury service and voting records found no overall boost in civic engagement following service on civil juries, whereas jurors who served on criminal cases did show increased civic engagement following their jury service. This article reports a project that augments the civil jury dataset with information about jury decision rule, jury size, defendant identity, and case type and examines whether specific types of civil jury service influence post-service voting. Taking into account pre-service voting records, jurors who serve on a civil jury that is required to reach unanimity or a civil jury of size twelve are significantly more likely to vote after their service. Jurors who decide cases with organizational as opposed to individual defendants likewise show a boost in voting behavior, as do jurors deciding contract or non-automotive torts cases compared to automotive torts. Limitations and implications for deliberative democracy theory and jury practice are discussed with these findings.
In Rogers v. Bromac Title Services, a three judge panel from the 5th Circuit upheld the trial judge's decision to dismiss the plaintiff's wrongful termination claim pursuant to the Jury System Improvement Act ("JSIA"), 28 USC 1875.
In this case, plaintiff, a closing officer, sued her former employer (real estate company) for violating 28 USC 1875 ("No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States.")
Plaintiff alleges that she was terminated from Bromac because of her service as a grand juror which required her to miss numerous work days. Defendant claims that plaintiff was terminated for making two offcolor remarks at important meetings. Defendant moved for summary judgment and it was granted. Plaintiff filed a timely appeal.
Plaintiff's first offcolor comment, which occured on August 31, 2011 during a meeting with real estate agents, was as follows: [r]aise your hand if you have had unprotected sex.
Plaintiff's second offcolor comment, which occured on April 18, 2012, again during a meeting, was as follows: [y]ou guys know you are always welcome to call me after hours or on weekends. I always answer my phone unless I'm drinking.
2 days after this second comment plaintiff was fired. She had been on the job since April 29, 2009. Rogers grand jury service had initially run from Aug 22, 2011 to Feb. 19, 2012; however, it was extended to August 19, 2012.
In upholding the trial court's dismissal of plaintiff's claim, the three judge panel determined that with claims arising under the JSIA, the plaintiff must prove that she would not have been subjected to the adverse employment action but-for her jury service. The panel then determined that the evidence presented by plaintiff was not enough to create a genuine material issue of fact that the reasons (her inappropriate statements in two important meetings) offered by the defendant were pre-textual.