Abstract: The rise of computer technology, the Internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to trial judges to minimize harm to trial fairness are toothless. The usual solution has been lawyers’ ethics rules designed to channel their communications with the press, particularly rules focusing on prosecutors.
This piece addresses these concerns, using a recent proposed revision to the American Bar Association Criminal Justice Standards for the Prosecution Function as a jumping off point for the discussion. Those Standards, like most state ethics rules, prohibit prosecutors from making “public statements that the prosecutor reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding.” Drawing on cognitive science, behavioral economics, rumor-transmission studies, and jury research, this article argues that a substantial likelihood of mate-rial prejudice to criminal proceedings from prosecutor statements to the press will always be present in high profile cases. Accordingly, the rules generally governing prosecutor dealings with the press, including the latest version of those rules embodied in the proposed Standards, are unrealistic. Better rules are theoretically possible. Nevertheless, this article concludes,such rules are probably not politically realistic. Accordingly, this piece recommends modest changes to the proposed standards’ commentary to alert prosecutors to the true nature of the risks arising from their contact with the media and recommending prosecutor training and internal and external accountability mechanisms to improve prosecutor performance in this area.
This week the California Supreme Court, in People v. Anzalone, determined that a trial judge's failure to poll the jurors after a guilty verdict was harmless rather than structural error. As such, the state hight court overruled the appellate court and affirmed the defendant's conviction.
The appellate court had initially overturned the defendant's conviction because they had found the jury's verdict to be "incomplete, defective, and invalid." The CA SCT saw it differently. According to the state high court, "to call what transpired here structural error would be to expand that notion beyond any example articulated by the United States Supreme Court, and elevate form over substance."
For other posts that discuss polling jurors go here.
If you want to know what jurors are thinking go to social media. Jurors like the rest of society are increasingly posting their thoughts on social media. In the most recent example, a juror in England who was sitting on the trial of an alleged sex offender posted the following on Facebook:
Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to F[!]ck up a paedophile & now I’m within the law!
This juror is now being prosecuted for contempt. Recently, I have started to notice, especially in England, courts taking a tougher stance on jurors who violate the court's rules about discussing or researching the case. It remains to be seen whether penalizing jurors is the way to go to stop improper juror communications and research via the Internet. I have always advocated a four prong approach to this problem: (1) juror penalties, (2) juror investigations, (3) juror questions; and (4) better juror instructions.
To read more about the prosecution of this English juror go here.
Abstract: This study examined jury trials conducted during the first three years since the introduction of a new jury system in South Korea. Case information from all jury trials held during the time was collected and empirically analyzed with a focus on judge‐jury agreement. The statistical analyses were guided by previous studies (Eisenberg et al. ; Spencer ). Results indicated that judges and juries agreed on the verdict 91.4 percent of the time (70.3 percent for conviction and 21.1 percent for acquittal). When they disagreed, juries had a greater tendency to acquit than did judges (7.4 percent and 1.2 percent, respectively). Neither evidentiary strength nor complexity had any systematic impact on agreement rates. Judges were more likely than juries to convict across all levels of evidentiary strength. The accuracy and error rates of jury verdicts were assessed by estimates of conditional probability.
The latest article on jurors and social media is listed below. Among other things, the article lists four reasons why courts are so concerned about jurors using social media.
(1) Potential for direct communication with members of the court
(2) Release of confidential information about the trial or the deliberation process
(3) Disclosing of personal information about a fellow juror
(4) Revealing an unacceptable bias for or against one party
I would add one more reason to this list or maybe expand #1.
Potential for communication with outside parties unaffiliated with the court.
When jurors use social media they are likely to post or write about the case. This increases the likelihood that they will get into a discussion or communication with an outside party about the case. This in turn may lead to the outside party improperly influencing the juror.
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. West Virginia may soon follow suit.
This week the WV House Judiciary Committee passed an amendment that would include sexual orientation among the factors that courts cannot use to eliminate potential jurors. Currently WV courts cannot ban jurors based on race, color, religion, sex, nation of origin, economic status or disability. West Virginia Delegate Cliff Moore said that he could think of a million reasons to support the amendment but not a single reason to oppose it.
The treatment of circumstantial evidence has undergone a dramatic change over time, from a high level of scrutiny to widespread acceptance. Similarly, our understanding of direct evidence has evolved, as wrongful convictions have exposed the potential unreliability of eyewitnesses and confessions. In accordance with the changing views of each type of evidence, this Note identifies two distinct policy goals of circumstantial and direct evidence jury instructions. The first is to establish an equality of import between the two types of evidence, to combat juror bias that leads to the under or overvaluing of one type over the other. The second, which seems to be in conflict with the first, is to promote a higher level of care during jury deliberations, so that jurors do not casually make incorrect or unfounded factual inferences. However, these goals can be reconciled if we acknowledge that all kinds of evidence are highly probative, and subject to similar dangers from inference. By evaluating three different states’ circumstantial and direct evidence jury instructions for comprehensibility and effective advocacy of policy goals, this Note identifies what is done well and what diminishes the efficacy of the instruction, and then offers various solutions in the form of altered instructions. Ultimately, this Note concludes that the most effective solution is to create a new instruction that combats the dangers of inference, appeals to jurors’ appreciation of a reasonable alternative narrative, and eliminates the unnecessary distinction between direct and circumstantial evidence.
The judge in Jodi Arias’ murder case on Thursday denied a defense motion to order jurors sequestered for the remainder of the trial during a bizarre week when one panelist was removed and videos emerged of Arias’ parents telling authorities she has mental problems...to continue reading go here.