Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing juridical framework to be wanting, this Article introduces Critical Originalism — a melding of antisubordination deconstruction principles of Critical Race Theory with the interpretive methodology of Originalism Theory — as a new method of ascertaining and capturing the discriminatory intent behind a statute or procedural rule.
[w]hether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonest during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty?
This case arose out of a motor vehicle accident in which a motorcyclists collided with a truck. The motorcyclist lost his leg and then subsequently brought a negligence action against the truck driver. The jury found in favor of the truck driver.
Shortly after the trial, a juror approached plaintiff's counsel and informed him that one juror, the forewoman, refused to decide the case on the evidence submitted. This juror further informed plaintiff's counsel that the forewoman told other jurors during deliberations that her daughter had been at fault in a fatal automobile accident and that had she been sued it would have "ruined her life."
Plaintiff's counsel had the juror complete a sworn affidavit in which he detailed the actions of the forewoman. However, the trial court, citing 606(b), refused to admit the affidavit into evidence. The court of appeals affirmed the trial court's decision.
Generally speaking, FRE 606(b), the juror anti-impeachment rule, prohibits the introduction of evidence concerning juror deliberations. FRE 606(b), is in place to: (1) provide verdict finality; (2) encourage jurors to freely express themselves during deliberations; and (3) reduce the amount of post-trial hounding jurors receive from attorneys. The Courts of Appeal, however, have not been uniform in their application of FRE 606(b) which is why this case has been granted cert. Hopefully, the SCT can provide the lower courts better guidance on the application of FRE 606(b).
Judge Amy J. St. Eve, Judge Charles P. Burns and Michael A. Zuckerman
This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, we have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media. Our results support the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media. We conclude with a set of recommended best practices for using a social-media instruction.
Abstract: This note argues that, implied within the Sixth Amendment’s Impartial Jury Clause, a criminal defendant enjoys the guaranteed right to waive a jury trial in favor of a bench trial. In State v. Bazile, the Louisiana Supreme Court held that the Sixth Amendment of the United States Constitution does not offer a criminal defendant the absolute right to a bench trial. Bazile was denied the chance to have his case heard in front of a judge because of a provision in the state’s constitution enforcing a deadline by which a criminal defendant must waive a jury trial in favor of a bench trial. However, the U.S. Supreme Court has recognized certain circumstances in which a criminal defendant would benefit from a bench trial. In U.S. v. Singer, the Court held that if a defendant is able to show a compelling reason that a trial by jury would not render an impartial trial, the denial of his proffered waiver violates his constitutional right to an impartial trial. In the present case, Bazile is charged with the murder of his wife, and he is facing the possibility of extensive imprisonment. In a trial of this notoriety, it is reasonable to expect that potential jurors would form biased opinions before hearing the facts of the case and the prosecution’s evidence. Ultimately, Bazile was decided incorrectly because a compelling reason is inherent in Bazile’s case, and he should benefit from a trial before a judge instead of a jury if it ensures an impartial trial.
Judge Lucy Koh last week denied Samsung's motion for retrial in its patent dispute with Apple (to read earlier posts about this trial go here and here). However, in making her ruling, she did rebuke the attorneys for Apple for harping on the fact that Samsung is a Korean corporation. Apparently, foreign corporations accused of infringing on a patent fair far worse when going before a jury as opposed to a judge.
Judge Koh highlighted this fact in her ruling when she cited a previous study that
found that “foreign patent holder win rates in jury trials against domestic infringers (38%) are significantly lower than domestic patent holder win rates against foreign infringers (82%). In contrast, in cases decided by judges, the patentee win rate is almost identical, with domestic patentees winning 35% of the time against foreign infringers, and foreign patentees winning 31% of the time against domestic infringers.”
Clay Conrad has a very well written op-ed on jury nullification and the legalization of marijuana. The premise of Conrad's argument is that through jury nullification citizens can informally legalize marijuana by acquitting those charged with low levels of possession. Conrad, a practicing attorney and author of Jury Nullification: The Evolution of a Doctrine, has written extensively on the topic of nullification.
According to the article,
Jurors have the prerogative to take a broader view of their jobs, one more in line with the history and purpose of the institution of trial by jury. Jurors can take an active role in the administration of justice and apply that “warm, living public opinion” to determine whether to label one of their neighbors a criminal. In doing so, they just might save a morally innocent (albeit technically guilty) individual from an unjust conviction and save our prisons, probation officers and social workers the expense of dealing with one more unnecessarily shattered life.
One residual consequence of George Zimmerman's acquittal last year has been an increased public interest in jury size. As some will recall, Zimmerman was acquitted by a 6-person all female jury. Currently, several states have pending legislation that would increase the number of jurors in criminal trials.
In Wisconsin, the state senate passed a bill which would require 12-person juries for all criminal cases to include misdemeanors. This same bill has already passed the Wisconsin Assembly.
In Florida, the Senate Criminal Justice Committee on a 4-3 vote approved legislation to require 12-person juries in any case where the sentence may result in a life sentence. In the Florida House of Representative, a companion bill would require 12-member juries for all criminal cases.
Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.
Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly
Alexis Forbes brings us all up to date on research, why it’s important to understand LGBTQ culture, and terminology. She includes a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this.
Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.
We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor--how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.
Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.
A Florida judge today held juror Dennis DeMartin in contempt of court and sentenced him to jail for at least 120 days. The contempt finding stemmed from DeMartin's misconduct during the trial of polo mogul John Goodman. Because of DeMartin's actions, Goodman's conviction and 16-year prison sentence for DUI manslaughter was set aside. Goodman will now have to be retried.
DeMartin's transgressions were twofold. First, he failed to tell the court that his ex-wife, then wife, was convicted of DUI. In addition, DeMartin conducted his own experiment with alcohol to determine how drinking might impair one's abilities. The court discovered DeMartin's misconduct because he self-published three books in which he detailed his time as a juror in the Goodman trial. According to the trial judge who sentenced DeMartin,
If I found Mr. DeMartin a benign Mr. Magoo who was unaware of the destruction he left in his wake, then I would find differently. I don’t think that’s the case.
The Chicago Tribune has an interesting editorial on jury nullification. I like the article because it discusses the difference between the jury's power to nullify and the jury's right to nullify. As of late, some are trying to convert this power into a right (go here for an example).