This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.
Today, the SCT released its opinion in Foster v. Chatman. Here is a brief summary of the opinion taken from the ABA's Criminal Justice Section.
Summary: The Court held that the Georgia Supreme Court's holding that there was no purposeful discrimination in the prosecution's elimination of all black prospective jurors during Foster's trial was clearly erroneous. The Court determined that notes from the prosecution's file strongly demonstrated a discriminatory motivation behind the peremptory striking of all of the qualified black jurors, and a "concerted effort to keep black prospective jurors off the jury."
There is a longstanding presumption in Canadian law that jurors will act impartially in carrying out their duties, but this presumption may be challenged when the defendant is a member of a racialized minority group. In those circumstances, the defence may initiate a challenge for cause procedure, wherein potential jurors are questioned about their ability to set aside any racial prejudice and judge the case solely on the evidence. Although the challenge for cause procedure has been in place for some time, little attention has been given to the process and whether it in fact effectively screens for juror bias. The present article provides an overview of the challenge for cause procedure, with particular attention to race-based challenges, as well as psychological research assessing the effectiveness of the procedure. Reference is made to the authors’ analysis of actual jury selection proceedings in which the challenge procedure was invoked. The data revealed that, although only a small percentage of potential jurors admitted to potential prejudice in open court, many more were excluded by triers and counsel.
The New Jersey Law Journal has an interesting article (Allow Convicted Felons to Serve on Juries) examining felons and the reform efforts currently underway around the country to limit the collateral punishments imposed on them. For example, several jurisdictions are allowing felons to vote and banning the box on employment applications. However, it does not appear that there is a big push to allow felons to serve on juries, which is why this article concludes that, like with voting, felons should be allowed to serve on juries. Here are the last two paragraphs of the article.
Voting and jury service are both responsibilities and privileges of citizenship. However, jury service, unlike the right to vote, is permanently curtailed by this statute. This also disproportionately disenfranchises minorities from being called for jury service where the opportunity for excusing potential jurors with a criminal conviction can be placed in the hands of counsel who might, if they feel it necessary, exercise a peremptory challenge during voir dire.
We believe that this restriction on the rights and responsibilities of citizenship should be stricken by the Legislature to bring jury service into harmony with voting law as part of the rehabilitative process afforded to all persons who have served their judicially mandated sentences.
The American Society of Trial Consultants is holding its annual conference May 19-21 in Redondo Beach, CA.
To register for the conference go here. A description of the conference can be found below.
Join us in dynamic Redondo Beach, California, alongside the sun and surf, for a timely discussion about the disappearing civil trial, and its effect on trial by jury and what trial consultants can do to adapt to the new legal landscape. Our 35th Conference is designed to address the decline of the civil trial in two ways:
First, we will explore the causes of the disappearing civil trial and analyze potential solutions. This discussion will be conducted by the leading authority on this matter, Mr. Steven Susman. Mr. Susman, a nationally known civil litigator, has founded and funded the emerging Civil Jury Project at New York University School of Law. Come and hear from this successful, veteran lawyer on how to adapt your practice to the 21stcentury legal landscape
Second, we will offer sessions about trial consultants can do to increase business when fewer and fewer cases are going to juries. This unique conference offers:
A panel of veteran trial consultants including Pete Rowland, Richard Gabriel, Tara Trask, and Robert Gershen will discuss how they have changed their practice in light of fewer civil jury trials.
Attorney Bruce Stern, Treasurer of the American Association of Justice and Woodward/White’s Best Lawyers in America (2003-2015) discusses What an Attorney Wants from a Trial Consultant…When the Attorney is not going to Trial.
Chris Ritter and Michelle Diago from The Focal Point discuss the use of graphics in trial, mediation and other trial consulting services.
Arianne Fushsberger provides insights on the use of Social Media Research on the Venire and Beyond, including social media research for non-trial settings.
Jonathan Corbin provides a research-based method for attorneys to ask for damages.
And, with a bit of glamour characteristic of Hollywood, Richard Walter, the Screenwriting Chairman & Associate Dean of the UCLA School of Theater, Film and Television, provides A Screenwriter’s Tips for Writing Openings and Closings.
This is a conference designed for both veteran and novice trial consultants. Veteran trial consultants have the opportunity to give back to the profession by offering a Masters Panel that is open to all attendees. Veterans can rejuvenate, network and share in a Masters Only Jam Sessions. Novice and intermediate trial consultants can attend the Masters’ Panel Session to learn the tricks of the trade. Trial Consulting 101 has been revamped with an emphasis upon the ASTC Professional Code. This isn’t your father’s Trial Consulting 101 and it is ideal for anyone wanting to learn how to provide trial consulting services the ASTC way.
For those who have access to the ABA Litigation News, I highly recommend an article written by Judge Mark A. Drummond entitled Do-It-Yourself Jury Surveys. The article discusses creating a post-trial juror survey and the value it can provide.
The U.S. Supreme Court has granted cert in Dietz v. Bouldin. The question before the high court is whether, after a judge has discharged a jury from service in a case and the jurors have left the judge's presence, the judge may recall the jurors for further service in the same case. At present, the circuits are split on this question.
Anyone familiar with the jury selection process knows that it can be somewhat tedious. With this in mind, the District Clerk in Harris County, Texas thought that it might be a good idea to liven up the wait by bringing in police K-9 dogs during Juror Appreciation Week to show jurors how these dogs discover drugs. While the District Clerk might have had the best intentions, this was definitely a bad idea in light of the fact that the prosecution routinely uses evidence uncovered by dogs and their handlers to prosecute criminal defendants. It appears that the District Clerk got the message and that this K-9 training session for potential jurors will not be an annual event.