Juries and Lay Participation. Nancy Marder from Chicago-Kent College of Law offers a comparative perspective on the jury, surveying the different ways in which laypersons are used and controlled in different common law and civil law systems.
Judge Jeannine Turgeon, Court of Common Pleas, Dauphin County (Harrisburg, PA) published an article in the January-February, 2017 edition of The Pennsylvania Lawyer titled, Permitting Jurors to Ask Questions During Trials: Is it a solution to the problem of curious jurors conducting electronic and social-media research? In the article, Judge Turgeon makes a very compelling argument that allowing juror questions may combat the persistent problem of jurors using internet/social media to do case related research by giving them an outlet to quell their curiosity. She further notes that there is a lack of clarity in Pennsylvania law regarding the use of juror questions in civil cases. However, the Civil Jury Instructions Subcommittee of the Pennsylvania Supreme Court’s Committee for Proposed Standard Jury Instructions indicated that it is permissible provided the parties and the trial judge agree. Although this article has some state specific references, the concepts presented will be of interest to a national audience.
Scottish Juror Jailed over a Joke
The Herald reported on January 11, 2017 that a Scottish juror caused a mistrial and was jailed over a bad joke. David McClure was selected to serve as a juror at Paisley Sheriff Court and hear a domestic assault case. Before any testimony began he said to his fellow jurors, “Can we not just find him guilty just now and all get home for Christmas?” The statement was heard by a member of the court staff. The jail sentence was later suspended and McClure was ordered to pay a £400 fine.
Jury System Management in the 21st Century
Paula Hannaford-Agor, the director of the Center for Jury Studies, published a chapter in a new book titled, The Improvement of the Administration of Justice. The book is available from the American Bar Association. However, the chapter titled, Jury System Management in the 21st Century: A Perfect Storm of Fiscal Necessity and Technological Opportunity is available online. The chapter is well written and worth reading in its entirety. However, it concludes:
There is some irony that jury trials and other forms of lay participation in the justice system are increasingly being adopted around the world, but are declining rapidly here in the United States. Many emerging democracies recognize the need for transparency and accountability in their criminal justice systems to overcome well-established (and mostly deserved) public distrust and lack of confidence. Some counter that the American justice system is sufficiently mature and the judicial bench is well respected as competent and conscientious, that heavy reliance on trial by jury is no longer as necessary to preserve public trust and confidence in the judicial branch. Given current concerns about social inequality, lack of social mobility, and political corruption, however, one wonders whether such a blithe attitude about continued public confidence in the courts is wholly warranted. It does not necessarily follow that a resurgence of jury trials would adequately immunize the courts against further public malaise, but at the current time, nothing has presented itself as a reasonable replacement for the role that the jury has traditionally played in the American justice system.
Failing to Appear in Australia
The Australian Associated Press reported on January 11, 2017 that the Chief Financial Officer of a company named Powerwrap is facing three months’ imprisonment for failing to appear for jury service. The CFO, Sean Slattery, acknowledges he intentionally failed to appear for jury service but stated in a hearing that he had required meetings with investors as his company is doing an initial public share offering. Justice Forrest said people cannot choose to be jurors only "when it suits them". He also said, "A fundamental requirement of a democratic society is that members of the public participate in jury service." The court advised Mr. Slattery to appear with counsel for the penalty phase of his case.
Visually Impaired Juror Challenged
The Court of Special Appeals in Maryland rendered an opinion in Tremayne Lewis v. Maryland on January 5, 2017. Mr. Lewis was tried by a jury and convicted of murder and other charges related to a shooting. During voir dire, it became clear that a juror, later identified as Juror One was significantly visually impaired. When the question was asked of the jurors about physical impairments, Juror One didn’t respond. The parties both exercised peremptory challenges, Mr. Lewis used 17 but did not exhaust all of his peremptory challenges. At the end of the first day of jury selection, the trial judge indicated that the court would do some research to determine if Juror One should be dismissed for cause as the case had evidence that required sight to interpret. The next day, the appellant and the State made a joint motion to strike Juror One for cause. The trial court denied the motion indicating that the parties could have removed Juror One with an unused peremptory challenge and that Mr. Lewis effectively waived the issue by not doing so. Mr. Lewis argued that “he did not waive the issue because using a peremptory challenge on the visually impaired juror would have made a bad impression on the other jurors in the room.”
Mr. Lewis argued on appeal that the trial court erred by failing to strike Juror One for cause because he was unable to “fully view, perceive, and evaluate” the “significant amount of visual evidence presented at trial.” The Court of Special Appeals affirmed the convictions and noted:
Maryland courts have consistently denied claims alleging trial court error in failing to strike a prospective juror for cause where the defendant has not exercised all of his allotted peremptory challenges.
Jurors receive little guidance in determining awards for pain and suffering and punitive damages. Consequently, these awards are notoriously unpredictable, undermining the law’s objectives and causing a wide range of harms. Among the methods that have been proposed for addressing the unpredictability of such awards is the use of information regarding awards in comparable cases (“prior-award information”) as guidance for award determinations. This paper reports and interprets the results of a factorial experiment designed to test the effects of prior-award information at different levels of bias, variability, and form of presentation on the magnitude, spread, and accuracy of awards for pain and suffering and punitive damages. The paper examines juror behavior in response to prior-award information, and interprets whether such information can be expected to improve awards under a robust set of conditions. In summary, the data provide strong evidence that prior-award information improves the accuracy of awards (as defined) and that its beneficial effect on the dispersion of awards generally dominates any distortion, or bias, caused by the information. Furthermore, the data provide evidence that triers of fact respond to prior-award information as predicted in recent literature, and in line with the “optimal” use of such information.
On December 15, 2016, the Supreme Court of Kentucky issued an opinion in Commonwealth of Kentucky v. Doss. Mr. Doss was charged with theft and he is African-American. During his first trial, after the jury was selected in accordance with applicable state procedures, there were no African-American jurors. The defense made multiple motions for a mistrial on the grounds that the jury was not a fair cross section of the community, as required by law. There was no showing of any statistical or demographic evidence to support the view that that the racial composition of the panel or the jury was the result of anything other than the random selection process. The trial judge ultimately granted the mistrial. On the following day a new panel was brought in and the defendant was ultimately acquitted. The state of Kentucky appealed the ruling of the trial judge as a certified question of law, a procedure which is permissible in Kentucky although the opinion would have no impact on Mr. Doss.
The principal question the Supreme Court of Kentucky addressed is:
Does a trial judge have the discretion to dismiss a randomly selected petit jury panel because it appears to be unrepresentative of a fair cross section of the community, despite the fact that the rules for jury selection were properly followed and no evidence suggests that the jury pool from which the panel was drawn was not a fair cross section of the community or that any significant segment of the local population was systematically excluded from the jury pool?
The Supreme Court of Kentucky concluded that it was an abuse of discretion for the trial judge in this case to dismiss the jurybased on it appearing to be unrepresentative without affirmative evidence that it was drawn from a systemically defective jury pool. They reasoned that the “temporary advantage” of the trial judge’s action are “short sighted and would be short lived.” They also noted that if the trial judge's actions became policy, there would be a significant amount of variance amongst judges in terms of what constituted a “proper composition of a jury."
In this case, the Supreme Court of Kentucky also considered:
May a trial judge bar the parties during voir dire from examining or challenging prospective jurors with respect to statements made by the jurors during a previous voir dire examination?
The appellate court determined that although a trial judge has significant discretion over the scope of voir dire, counsel “must have a means to inquire into matters that would expose known or suspected biases that might reasonably lead to a challenge of the juror's qualification to serve.” Further, “Prior statements of prospective jurors relevant to their qualifications to serve on the particular case is a proper subject of inquiry.
Managing “Call Offs"
A jury manager in a smaller court would like to speak to other jury managers or court professionals about how they were able to effectuate solutions to manage the persistent need to “call off” jurors due to a last minute settlement or guilty plea. He is familiar with plea/settlement cutoff dates and “one day/one trial” but would like to hear about your strategy and/or success in getting the bench and bar to consider these types of options. His court uses three month terms for jurors and they are often notified they need to report ten different times during their term of service. During most terms, they are called off for the vast majority dates or even all of them. This has resulted in significant juror unhappiness and higher rates of failing to appear. If you would be willing to share your experiences and ideas, send an email to ghurley@ncsc,org and it will be forwarded to the requestor.
Jury Consultants Need Not Apply
The Texas Lawyer published an article on December 20, 2016 titled, Jury Consultants Need Not Apply — Winning Litigator Relies On Web Instead. The article describes a civil trial litigated by attorney John Zavitsanos in which he won a $5.3 million verdict. Rather than use trail consultants to help select the jury, he used a 15 member team to scour the internet for information. He describes in the article how his team learned information about a specific juror using social media that was not uncovered with traditional voir dire. He stated:
"There is information available on jurors now that was never available before. In this case, the panel members were a lot more conservative than their survey indicated. Getting on Facebook, Snapchat, and Instagram, it's remarkable the kind of stuff you can find that they never volunteered."
Virtual Reality for Jurors
WXIA-TV reported on December 28, 2016 that a Decatur, GA company is developing a virtual reality tool for jurors. The software would allow police to use a cell phone to take pictures in 360 degrees around a crime scene and then stitch them together into one continuous image. Jurors would then be given headsets enabling them to explore the crime scene themselves using this immersive technology. The story notes that this type of technology hasn’t yet been used by juries and it does not discuss any of the evidentiary challenges to getting this type of evidence admitted. However, Cobb County Solicitor General Barry Morgan said, “There’s going to come a day when it’s a necessity to have these types of things in evidence.”
(Court of Appeals of New York) - Conviction for manslaughter is reversed where the trial court abused its discretion by prohibiting defense counsel from questioning prospective jurors about their views on involuntary confessions.
(Court of Appeals of New York) This appeal requires us to consider whether skin color of a prospective juror is a cognizable classification upon which a challenge to a prosecutor's use of peremptory strikes under Batson v Kentucky (476 US 79 ) may be based. We recognize the existence of discrimination on the basis of one's skin color, and acknowledge that under this State's Constitution and Civil Rights Law, color is a classification upon which a Batson challenge may be lodged. The courts below held that defendant failed to make a prima facie showing of discrimination when he challenged the prosecutor's use of peremptory strikes to exclude dark-colored women. We find this was error, and therefore reverse...
The hallmark of the corporate form is its limited liability, which ensures that a judgment recovered against a corporation generally cannot be enforced against its shareholders. But 'generally' is an important qualifier. When the corporate form is used to commit fraud and the corporation has no assets to satisfy a judgment, a creditor may "pierce the corporate veil" and hold otherwise immune shareholders personally liable for the corporation's debts...