When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
As some may recall, last week I posted about the efforts of a New Jersey state legislator who recently introduced legislation to allow citizens to volunteer for jury duty. The post and information about the bill can be found here.
This week the South Jersey Times has come out with an editorial criticizing the bill. One of the stronger points made by the editorial is that
[t]he...eagerness to do this civic duty rarely walks hand in hand with pure neutrality
A story out of Allentown, PA provides just one more example of social media's impact on jurors. Here, a witness in the Amanda Hein first-degree murder trial was apparently lovestruck by one of the jurors so much so that he attempted to contact the juror through social media. The witness posted the following ad on Craigslist Missed Connections:
you were a juror in the allentown baby killing case - m4w (Easton)
You...blonde juror 2nd row in the Amanda Catherine Hein case Me...testified first thing Wednesday morning about an online/phone relationship with Amanda You...smiling at me Me...making eye contact and trying not to make it obvious I was smiling back
Hope you get done soon
hope to hear from you
do NOT contact me with unsolicited services or offers
The court learned about the ad on Wednesday and the jury returned its guilty verdict on Thursday. Fortunately for the prosecution, it appears that the juror in question was unaware of the ad. Thus, it is highly unlikely that the actions of the witness could lead to a mistrial or new trial for the defendant.
However, this case illustrates why judges must educate everyone in the courtroom to include witnesses about what they can and cannot do on social media. The actual Craigslist posting can still be accessed online.
Asymmetry as Fairness: Reversing a Peremptory Trend
Abstract: A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical solution is more appropriate. Second, the states historically adopted an asymmetrical solution — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, declaring that there are no reasons not to. This Article supplies those reasons, demonstrating that asymmetrical allocation of peremptory challenges not only brings benefits in the jury selection context, but also helps resist tendencies elsewhere in the criminal justice system to equate asymmetry with unfairness, and thus to erode foundational protections.
New Jersey state Assemblyman Craig Coughlin (D-Middlesex) has introduced a bill (A2949) to create a new pool of potential jurors from volunteers. The relevant portions of the bill can be found below.
1. N.J.S. 2B:20-2 is amended to read as follows:
2B:20-2. a. The names of persons eligible for jury service shall be selected from a single juror source list of county residents whose names and addresses shall be obtained from a merger of the following lists: registered voters, licensed drivers, filers of State gross income tax returns,[and] filers of homestead rebate or credit application forms and a separate, voluntary list of persons available for jury service including but not limited to persons who are retired, or employed part-time, compiled annually by the county clerk of each county. The county election board, the ounty clerk, the [Division of Motor Vehicles]New Jersey Motor Vehicle Commission and the State Division of Taxation shall provide these lists annually to the Assignment Judge of the county. The Assignment Judge may provide for the merger of additional lists of persons eligible for jury service that may contribute to the breadth of the juror source list. Merger of the lists of eligible jurors into a single juror source list shall include a reasonable attempt to eliminate duplication of names, except that persons whose names appear on the separate, voluntary list of persons available for jury service shall not be eliminated for duplication, and may appear up to two times in a merged juror source list.
b. The juror source list shall be compiled once a year or more often as directed by the Assignment Judge.
c. The juror source list may be expanded by the Supreme Court as it deems appropriate.
This bill if enacted into law would raise potential constitutional questions with respect to the defendant's 6th Amendment right to a fair-cross section of jurors.
Eight months after six jurors acquitted George Zimmerman in the shooting death of Trayvon Martin, the trial judge handling the case has decided to release the names of the jurors to the general public.
Missouri is set to become the latest state to exempt nursing mothers from jury duty. Both the Missouri Senate and House have passed legislation that would allow nursing mothers to avoid jury duty so long as they provide the court with a doctor's note. The legislation now awaits final signature of the governor.
Once the legislation is signed into law, Missouri would join several other states that exempt nursing mothers from jury duty. According to the web site of the National Conference of State Legislatures, 15 jurisdictions provide such exemptions(California, Connecticut, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Mississippi, Montana, Nebraska, Oklahoma, Oregon, South Dakota and Virginia.)
The push for the Missouri legislation was started last year after one potential juror was held in contempt for bringing her seven month old child to jury duty. According to the judge, this juror "willfully and contemptuously appeared for jury service with her child and no one to care for the child.” Fortunately for this prospective juror, the judge agreed to hold off on collecting the $500 fine until after the legislative session.
ABSTRACT:Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it.
This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. I apply this spectrum of juror bias to provide a sounder way to think about what kind of juries we want.
I argue that trial courts should limit the interrogation and disqualification of prospective jurors to personal interests in the case — whether social or financial — and to case-specific beliefs arising from pretrial facts or rumors about the parties or events. By contrast, I would permit no such wholesale exclusion, either for community interests, which range from principles of justice to desires for vengeance, or for case-general beliefs about social causes or groups, which span scruples to dogmatism, and empathy to bigotry.
My proposal to abolish challenges for these latter categories of outside influence raises the serious concern that accommodating their presence on the jury risks facilitating unjust outcomes, jury nullification, and hung juries. Trial courts should mitigate these risks by adopting two bias-tempering measures. First, jury pools should be diversified in ways that social cognition research suggests would attenuate the influence of unreflective or objectionable attitudes. Second, judges should instruct deliberating jurors to express, along with their own position, the strongest counterarguments to it, so as to disrupt exaggerated assumptions of division and facilitate openness to persuasion.
The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.
This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.
The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.
In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.
California has become the first state in the country to introduce legislation to safeguard a juror's social media username and password. California bill (A.B. 2070) prohibits a court from requiring or requesting a juror or prospective juror to disclose a username or password for the purpose of accessing personal social media or requiring the juror or prospective juror to access personal social media in the presence of the judge, counsel for either party, or any other officer of the court.
AB 2070 introduced earlier this year by State Representative Nora Campos is most likely in response to recent efforts by attorneys to gain greater access to the social media accounts of jurors. As some may recall, the attorneys representing Jodi Arias filed a motion, which was denied, to obtain the Twitter handles of prospective jurors. Also, two years ago, a California Appellate Court in Juror #1 v. Superior Court directed a juror to make his Facebook account available to the court.