Abstract: The Article calls for the elimination of peremptory challenges in Texas civil cases where the amount in controversy is low (relatively speaking); a presumption against the use of peremptory challenges for most civil cases that can be overcome through case-specific evidence but that still ultimately yields a reduced number of peremptory challenges than current law permits; and a new procedure that would allow judges considerable freedom to specially tailor jury selection procedures in complex civil cases. As part of this tailoring in complex civil cases, Texas law would allow for the creation of “expert juries” in which the experience and knowledge-base of particular prospective jurors is carefully matched to jury service on individual cases.
Abstract: The fairness of the application of the death penalty has come under question in recent years, amid the growing number of minority death row inmates. In this study, the Supreme Court decision Ring v. Arizona, which changed the death penalty sentencing phase in 13 states, is used to identify the different case and defendant characteristics that affect the decision to apply the death penalty. Using data that link homicide incidents to defendant trial outcomes in states with the death penalty, estimates suggest that juries both are more likely to apply the death penalty than judges and are more influenced by the age and race of the victim and the offender. These results raise concerns over the recent shift from judicial- to jury-based sentencing in capital cases.
Earlier this month, the Ohio Supreme Court handed down State v. Gunnell. In Gunnell, a juror went online and looked up the terms "perverse" and "involuntary manslaughter." Interestingly, prior to going online, the jury had asked the court for a definition of "perverse." However, the court failed to respond to the jury's request.
The trial judge's deputy discovered the juror's misconduct during deliberations and the court held a brief hearing on the issue. The judge questioned the juror about her actions; however, he never enquired as to whether the juror was biased or prejudiced by her research. After the evidentiary hearing, the judge, against the wishes of defense counsel, ordered a mistrial.
When the government sought to retry the defendant, she claimed that this new trial violated her 5th Amendment rights against being placed in Double Jeopardy. This objection was based on the theory that the earlier decision to order a mistrial was not due to "manifest necessity." This objection was overruled and the trial went forward. The defendant was convicted and she appealed.
The appellate court reversed the defendant's conviction finding that there was not "manifest necessity" to support the trial judge's decision to order a mistrial. The state then appealed to the Ohio Supreme Court which upheld the appellate court's decision. The Ohio Supreme Court found that
although a trial judge’s determination of juror bias is entitled to great deference, it must be predicated on the judge’s proper discretion in hearing the case. Mere supposition, surmise, and possibility of prejudice are not sufficient. This distinction is a simple but critical one, and one that was overlooked by the trial judge in this case. Although a trial judge’s determination of juror bias sufficient to create the need to declare a mistrial is a matter of discretion, the record here reveals nothing of substance from which the judge made his determination.
For those who can't get enough of Batson v. Kentucky, I highly recommend reading the latest edition of the Iowa Law Review. This symposium edition is dedicated to examining the impact of Batson over the past 25 years.
Twenty-Five Years of Batson: An Introduction to Equal Protection Regulation of Peremptory Jury Challenges
This case from Canada demonstrates the value of investigating jurors. In this case, Fred Prosser was charged with the first-degree killing of Sabrina Patterson. His 12-person jury was selected this past Tuesday. On that same day, the victim's family conducted an online investigation of the jury and discovered that one juror belonged to an anti-Prosser Facebook group. The victim's family relayed this information to the Crown (Prosecution) who informed the judge.
The next day, just before opening arguments, the judge declared a mistrial. The victim's family explained that they gave the information to the Crown because they thought it might, if discovered later, lead to a mistrial or appeal and thus require a second trial.
For more background information about this story go here.
Here is a link to the voir dire questions proposed by both Apple and Samsung in their ongoing civil lawsuit. What is interesting here is the vast difference in the number of questions proposed by each side. Apple proposed 49 questions to the jury while Samsung proposed 700 questions.
For more information about the Apple and Samsung lawsuit go here.