Descriptive and normative discussions of whether the jury trial is or should be a political institution are complicated by the systematic ambiguity of the most important terms in this discussion. One influential perspective understands a political actor as "he would decide on the exception." This seems to fit the jury insofar as it may nullify the written law in its decisions. It turns out, however, that the jury's actual practices demonstrate that the usual notion of sovereignty is far too narrow.
In 1868, the Fourteenth Amendment to the United States Constitution was passed stating that no state shall deprive “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The United States Supreme Court first held that the Fourteenth Amendment applied to jury selection in in 1880 in Strauder v. West Virginia. In Strauder the court held that West Virginia violated the defendant’s rights when the State’s attorney excluded African Americans from jury service. The Court further held that a defendant does not have the right to a jury including members of his own race. Later in a 1986 case, Batson v. Kentucky, the United States Supreme Court revisited its application of the Fourteenth Amendment application to jury selection, particularly when striking potential members due to race. In Batson, the Court held that when a prosecutor uses a challenge to strike a potential juror in violation of equal protection, the State must produce a non-discriminatory reason for the challenge.
In 1989, the Louisiana Supreme Court adopted the United States Supreme Court’s decision in Batson which later became codified in the Louisiana Code of Criminal Procedure article 795 by the Legislature. A Louisiana appellate court established the Knighten Rule which held that the State must turn over any information upon the request of the defendant in regards to the criminal record of the prospective jurors. However, the Louisiana Supreme Court recently abrogated the Knighten Rule in State v. Bender and held that a mere assertion of the potential juror’s prior criminal conviction is sufficient to strike a potential juror. I argue that by abrogating the Knighten rule, the Louisiana Supreme Court is in direct opposition to the Supreme Court’s mandate under Batson that requires that a challenger to produce some racially neutral-explanation that is “clear reasonable, specific, legitimate, and related to the particular to the case at bar.”
Understanding the law is difficult. Getting juries to understand the law is more difficult. Yet we provide evidence that it can be done, even in complex areas such as antitrust. This Article tests whether jury instructions can be written in a way that maintains fidelity to the law - indeed, improves on fidelity to the law compared to standard jury instructions - while also permitting jurors to understand the relevant legal standards. But it goes further than that. It proposes making empirical testing an integral part of drafting model jury instructions. It also shows that such empirical testing is feasible by harnessing the power of the Internet. It undertakes those efforts by drafting and testing jury instructions in two challenging areas of antitrust law. The results of the empirical testing provide reason for optimism about the prospects of juries understanding the law, if those who draft jury instructions test whether they are comprehensible and modify draft jury instructions in light of empirical results.
In Verlo v. Martinez, the 10th Circuit Court of Appeals upheld an injunction issued by a federal district court that struck down an earlier state court ban prohibiting peaceful pamphleteering in front of a Denver state courthouse. The pamphlets in question informed the public and presumably potential jurors about jury nullification. While the 3-judge panel ultimately held that the district court did not abuse its discretion in issuing a preliminary injunction, the appellate court reserved making a decision on whether a permanent injunction should issue.
The Indiana Supreme Court in Wall v. Indiana has granted a husband and wife, who were both convicted of manslaughter, new trials because an alternate juror participated in deliberations. Apparently, this juror not only participated but also became very involved in the deliberations. According to the state high court,
[e]ven after being informed by other jurors not to participate in the deliberations, the alternate juror
manipulated physical evidence (the working parts of a baby gate) and repeatedly replayed a portion of the DVD that was in evidence, with ever-increasing volume, until all jurors were giving it their attention
Interestingly, not every member of the Indiana Supreme Court thought that the defendants should automatically receive a new trial. At least one dissenting justice argued that the case should be remanded so that the trial judge can poll the jurors to determine the impact of the alternate juror’s misconduct on their respective impartiality.