Juries

Reform Proposals for Jurors in the Digital Age

Here is an excerpt of an article written by Brad Reid entitled It Is Time to Rethink Jurors' Access to Information.  The article, which appears in the Huffington Post, offers some new and unique ideas on how to address the problem of improper juror communication and research.  

(1) Juror Facebook friending with parties to the litigation should not be allowed as there is a potential for bias.

(2) Some neutral tweets or posts by a juror about jury service should not automatically result in a mistrial.

(3) Jurors should be allowed to submit questions to witnesses and the judge while the trial is in progress. This could be done electronically.

(4) Internet searches should be allowed but conducted in a manner that allows all parties to the litigation to respond to the information that is produced.

(5) The trial should move from being chiefly oral to a more information collection and evaluation based approach.

(6) Jurors should routinely be transported to the location of significant events especially when physical aspects of such location are at issue.

(7) There should be broader incentives to encourage the parties to agree to submit to the jury "undisputed facts."

(8) Juries should be allowed to request properly authenticated expert testimony.

(9) Juries should be allowed some limited opportunity for mid-trial deliberation, perhaps at the close of the plaintiff's and defendant's cases, in order to determine what additional information they desire.

(10) Jury deliberations should only in very limited circumstances be subjected to post-trial inquiry in order to overturn a verdict.

(11) Most importantly, jury proceedings should not be conducted in a manner that creates an appearing of "hiding" information from the jury.

To read the entire article go here.

 

 

Jury News

Virginia Pilot: State bill advances to allow new jurors in sentencings

The Republican: Cabell County looks for ways to boost juror pools, fewer people ...

London Free Press: Jurors rounded up from street

‎The Guardian: The case for cutting juries is utterly flawed

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NJ Prosecutors Seeking Information on Prospective Jurors

Prosecutors in Essex County, New Jersey believe that some prospective jurors are less than honest when asked about their criminal records.  Thus, the top prosecutor in the county last week asked a trial judge to start releasing the birth dates of prospective jurors so that prosecutors could check their criminal record. 

Researching or investigating jurors is not a new concept (see for example the trial of Bruno Hauptmann which occurred in New Jersey), however, over time the practice had fallen out of favor with most.  In the Digital Age, the practice has been resurrected.  With so much personal information on the Internet, attorneys are increasingly going online to investigate or monitor jurors.  In fact, at least one jurisdiction (Missouri) requires attorneys to run basic searches on jurors if those attorneys want to later raise a claim of juror misconduct.  Investigations help remove untruthful and biased jurors and increase the likelihood that jurors will follow the court's instructions. Thus, it appears to me that this request by the NJ prosecutors should be granted. 

Attorneys for Komisarjevsky Argue that Defendant's Trial Should Have Been Moved

As some may recall, Mr. Joshua Komisarjevsky was sentenced to death for his role in a deadly 2007 Connecticut home invasion.  In an attempt to set aside Komisarjevsky's 2011 death sentence, his lawyers recently filed a motion for new trial arguing, among other things, that defendant's trial should have never been conducted in New Haven.

Here are some snippets from the defendant's motion

The court should grant a new trial because, based upon the notoriety of the case, the highly publicized advocacy of the victims, the configuration of the courtroom and the emotional effect of a clearly visible Petit posse silently but powerfully advocating that the defendant be put to death, Mr. Komisarjevsky was denied the constitutional right to a fair and impartial jury...

Almost the entire pool of potentially eligible jurors in New Haven County was familiar with the case and that nearly as many had made up their respective minds that Mr. Komisarjevsky was not only guilty but also that he should be executed...

Even if some of the jurors selected did possess qualities of independence and rationality, the ambience of the courtroom, occurring as it did over numerous defense objections, seem designed to erode such independence and substitute passion for reason.  Dr. Petit and his supporters, often numbering in the scores, were segregateded on the side of the courtroom closest to the jury...Because this configuration of courtroom spectators did not allow the press, the curious, and the neutral to be mixed among the Petit advocates of death, the Petit posse, wearing the easily observable badges of solidarity (the Petit Family Foundation pins designed to honor the three victims at issue in this case), was immediately recognizable to the jury...

Jury News

Yahoo: The evolving Constitution: How Facebook, Google and Twitter cause problems for the right to a fair trial

KTXL: Judge Delays Sentencing of Convicted Sheriff Killer to Consider Retrial

LA Times: California Supreme Court voids death penalty in 1998 killing

Boston Globe: Bronx Civil Juries Award $80M to Victims in 2011

Monitor a Juror's Tweets Ethically

Attorneys for the most part can investigate and monitor the jurors who are sitting on their trials.  However, they may not directly contact those jurors.  Thus, a potential ethical dilemma arises if the attorney wants to follow a juror on Twitter because the social media service will automatically email the juror notifying them that they are being “followed” by that attorney under that attorney’s account name.  To resolve this issue, the folks at X1 Discovery have created X1 Social Discovery which according to the company:

enables access to all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real-time without generating a formal “follow” request with the resulting problematic communication. This feature works within the public APIs provided by Twitter for third party developers. 

Also, you can use this service for non-jurors. The cost is $945 per year. If anyone has used this product, I would be interested in hearing how useful this service is.

Judge's Ex Parte Communication with Juror Leads to Reversal

Today, the Second Circuit (U.S. v. Collins) Court of Appeals vacated and remanded the securities-related criminal convictions of Joseph Collins because the trial judge who presided over Collins' case engaged in ex parte communications with a juror.

Wall Street Journal: Refco Lawyer Gets New Trial

Bloomberg: Ex-Refco Lawyer Collins's Conviction Reversed by Court Due to Jury Issue

Jury News

Sac Bee: Dismissal of juror in Yolo deputy killer's case challenged

‎Chicago Tribune: Cellini juror with criminal record explodes at defense questioning

‎Financial Times: Lessons from the Lawrence trial in unbiased juries

Philadelphia Inquirer: Juries may declare peace in the drug war

Detroit Free Press: Grand juries: A vital tool or in need of reform?

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The 7th Circuit and the Missing Juror (Webster v. United States)

In Webster v. U.S., the defendant was convicted of cocaine-trafficking and tax fraud charges. The defendant, after exhausting his direct appeals, filed a habeas petition arguing that his conviction should be overturned because one juror (M.J.) had called in sick during deliberations.

In response to defendant's petition, the federal trial court interviewed all the jurors who sat on defendant's case except for M.J.  The results of the interviews were mixed as some former jurors remember deliberating without a juror while others did not. Ultimately, the trial court denied defendant's habeas, finding that the defendant had procedurally defaulted for failing to raise the absent juror issue earlier.  The trial judge also found that the evidence presented (juror interviews, testimony from court personnel, and the court docket) was insufficient to determine whether the jurors actually deliberated without the missing juror.

On appeal to the 7th Circuit, the appellate court agreed with the trial courts holding but disagreed in part with how the trial court arrived at that holding.  For example, the appellate court determined that the defendant's habeas was timely and not procedurally barred.  However, in addressing the merits of defendant's claim, the 7th Circuit upheld the trial court's holding stating:

The district court found as a matter of fact that the jury did not deliberate on the day [missing juror] M.J. was absent, and this finding is not clearly erroneous.

The 7th Circuit went on to correct the trial court on its interpretation of U.S. v. Araujo and FRE 606(b). In examining Araujo, the appellate court pointed out that the temporary absence of a juror is not necessarily a structural error.

With respect to FRE 606(b) the appellate court stated that

"admitting the contents of the [juror] interviews plainly violated Rule 606(b).  At oral argument Webster's counsel argued that Rule 606(b) was not implicated because the interviews were limited to "historical objective fact"-- that is, whether a juror was absent during deliberations, not whether the absence influenced the jury's decision.  But as the district court itself acknowledged, the questions "did not fall within the ambit of facts to which a juror may testify under Rule 606(b)."

h/tip Federal Evidence Blog

France Experimenting with more "Jury" Trials

Following in the steps of countries like South Korea, Japan and Georgia, France is testing a pilot program to increase lay participation in criminal trials. However, unlike other countries that have recently embraced the jury system, France wants greater citizen participation because the current government believes it will depoliticize the trial process and lead to more guilty verdicts.   

According to the article below,

Citizen panels are only used in trials at Cours d’Assises – higher courts that deal with serious crimes such as murder – where nine jurors assist three investigating judges (12 in appeals cases).

In the experiment due to begin this month in Tribunaux Correctionels (correctional courts) in Toulouse and Dijon, two jurors will sit with three magistrates in cases punishable by five to ten years of jail and involving crimes against the person (such as sexual assault and aggravated burglary).

If the trial proves successful, it will be rolled out to all Tribunaux Correctionels in 2014, as well as to courts that oversee the application of sentences.

Affecting some 40,000 cases a year, the changes will cost the French taxpayer 50 million euros a year, while many in the legal system believe the courts are already chronically underfunded.  

Announcing the introduction of juries in September 2010, French President Nicolas Sarkozy said that “justice is handed down in the name of the French people, and so it should be handed down by the French people.”

FRANCE 24: Sarkozy 'playing politics' with more jury trials, magistrates claim

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