As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender. To do otherwise would be a violation of Batson and its progeny. At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.
The federal government may soon follow suit if Senators Jeanne Shaheen (D-NH), Susan Collins (R-ME), and Sheldon Whitehouse (D-RI) have their way. They recently introduced a bill entitled the Jury Access for Capable Citizens and Equality in Service Selection (ACCESS) Act of 2012. This bill prohibits attorneys from striking potential federal jurors because of their sexual orientation or gender identity.
According to Senator Shaheen, “[d]iscriminating against a potential juror because of sexual orientation or gender identity is unacceptable, and it should not be tolerated. Our country is founded on principles of inclusion and acceptance and the jury selection process should be no different.” Earlier this year, Representative Steve Rothman introduced a similar bill HR 5848 in the U.S. House of Representatives.
Those in favor of extending Batson to sexual orientation argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation.
Part I of this article explores the historical prominence of the damages remedy as a means of constitutional enforcement and the central role that the jury was intended to play in that endeavor. Part II discusses the Supreme Court‘s refusal to permit awards of presumed damages in constitutional cases where compensatory damages can be obtained and how federal courts have made compensatory damages more accessible for intangible harms. Part III describes the Second Circuit‘s decision recognizing presumed damages and proceeds to analyze the doctrinal and constitutional flaws attendant to presumed damages. In Part IV, I contend that the Second Circuit‘s attraction to presumed damages can be explained by its wrong-headed refusal to recognize that attorneys‘ fees can and should be awarded for nominal damages recoveries.
Debate about the courts frequently focuses on fostering 'public confidence' in the legal system. In the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., both the majority and the dissent invoked 'public confidence' arguments in support of their competing positions. Though courts invoke such arguments frequently, they do not explain what target audience they mean by 'the public' and they do not explain how judicial decisions will foster confidence. In fact, such concepts are problematic when examined closely: the general public typically will not receive the messages courts are trying to send, because most people do not read or know about specific judicial opinions. Even for those highly salient cases in which the courts’ intended messages will be received, such messages often may not broadly enhance public confidence because the general public is often divided on the controversial issues courts handle.
This article offers a different framework for analyzing 'public confidence' arguments. Drawing on psychological survey research about what gives people confidence in the courts, I argue that courts invoking 'public confidence' should focus not on the 'general public' but primarily on those who directly experience the court system, and should concentrate on improving basic elements of procedural fairness that are most important to people’s perceptions of the system. I analyze Caperton within that framework, and then address a specific issue involving jury selection (a context in which average citizens directly experience the court system): how the system should respond when the presiding judge and a potential juror have a close relationship to each other. I argue that even though specific legal rules do not appear to cover this issue, and even though many judges and lawyers might see no problem with it, courts should view the issue from the perspective of an average citizen, who will likely see a threat to basic procedural fairness if the presiding judge and a potential juror have a close relationship.
Though noncitizens can be, and frequently are, judged by juries, they are categorically excluded from serving on them. In this Note, I explore the implications of this exclusion from demographic, functional, and doctrinal perspectives. The demographic portrait of noncitizens and minorities in the United States shows that the citizenship requirement for jury service results in the exclusion of significant numbers of residents in certain regions, and that this exclusion is highly skewed by race and ethnicity. The exclusion and resulting decrease in jury diversity has potentially negative effects on the jury’s decisionmaking and its institutional legitimacy, and it excludes many residents who may be integrated into the community for many other purposes. Doctrinally, the exclusion of noncitizens from the jury might be challenged as unconstitutional on several grounds. Although some of the constitutional arguments are unlikely to be persuasive to the courts, I argue that there is room under the current doctrine for claims based on rights of the party before the jury—either under equal protection or the fair cross-section requirement of the Sixth Amendment—to succeed if properly framed.
According to the news report below, the government retained a jury consultant (Richard Gabriel) to assist them in the Kwame Kilpatrick corruption trial. This is not the first time that prosecutors have retained a consultant to help in the prosecution of a high-profile mayor. A jury consultant was used during the corruption trial of the former mayor of Baltimore, Sheila Dixon. The use of jury consultants by the prosecution raises an interesting question about whether judges should be more willing to approve funds for indigent defendants to hire their own jury consultants, especially since most of the information uncovered by a trial consultant is not subject to the Rules of Discovery. I previously blogged about providing trial consultants for indigent clients here.
The article below discusses 10 interesting factoids about the jury. My favorite is #5
The first woman to receive a jury summons was a schoolteacher named Eliza Stewart in 1870 in the Wyoming Territory, which had just granted women the right to vote. According to the March 22, 1919, edition of The Woman Citizen magazine, Laramie at the time was beset by a "mass of depraved humanity and desperate characters," and the town's menfolk asked the women to serve on juries to help "put down the anarchy."
Below is an article that discusses how a NH jury arrived at its decision to nullify the verdict in a felony marijuana case. The article is written from the point of view of one of the jurors who sat on the case. As some are aware, NH recently passed a law allowing attorneys to inform jurors about their right to nullify.