The Texas Tribune reported a story on March 28, 2017 about Juror Sven Berger. Mr. Berger was a member of a capital jury that voted to convict and recommended execution of a defendant in 2008 in a Texas state court. He subsequently has stated that he would have been a lone holdout during the penalty phase in favor of life without parole but he bent to the will of the majority due to the wording of a jury instruction. Capital jurors in Texas answer three special interrogatory questions, the answers qualify a defendant for a death sentence. Mr. Berger claimed in a letter to the Texas Criminal Justice Committee that, “The judge instructed us that any vote that would impose a life sentence would require a consensus of 10 or more jurors.” The article claims the instruction isn’t accurate. A sole juror can cause the sentence to default to life without the possibility of parole based on an appropriate vote on one of the three special interrogatories. Mr. Berger indicated that had he known that, he would not have voted with the majority the 2008 case.
State Senator Eddie Lucio, Jr. and Representative Abel Herrero filed Senate Bill 1616 and House Bill 3054, respectively. The bills would strike the statutory language in the instruction that says ten or more jurors must agree to an answer against the death penalty, and allow judges or lawyers to tell jurors what their votes mean.
Experts in Deliberations
Kristin A. Liska published a note in the March, 2017 edition of the Stanford Law Review titled, Experts in the Jury Room: When Personal Experience Is Extraneous Information. The abstract to the note states:
The introduction of extraneous information into the jury room has been recognized by courts as posing a potential threat to the due process rights of litigants and the Sixth Amendment rights of criminal defendants. At the same time, however, courts encourage jurors to use their prior experience and common sense as a means of analyzing the evidence at trial. Expert jurors occupy a space at the intersection of these two poles. By virtue of their own personal expertise, they pose a distinct risk of bringing in the sort of information other jurors are prohibited from seeking out by simply using personal experience to analyze the evidence and theories at trial. Given the modern-day jury, which unlike its historical counterpart is limited to the evidence at trial, how should courts handle the risks expert jurors pose? This Note examines that question. It first situates the jury in its historical context and discusses the problem of extraneous information. It then details the present case law on when a juror’s use of personal expertise introduces extraneous information. Finally, it suggests alternative solutions to the problem expert jurors can pose.
Big Data for Jury Selection
Andrew Ferguson, a law professor at the UDC David A. Clarke School of Law and author of “Why Jury Duty Matters,” was interviewed on a WNYC radio broadcast on March 27, 2017. The segment was called Using Big Data to Create a More Fair Jury. In the interview, he makes the case that using big data in the jury selection process would cause jury panels to be a better cross section of the community and would create more equality amongst the parties as they all would have the same information about the panel members. This is an interesting interview worth taking the time to listen to.
Juror Perceptions of Exercising the Right to Remain Silent at Trial
Jeffrey Bellin of William and Mary School of Law is publishing a law review article titled The Silence Penalty in a forthcoming edition Iowa Law Review. The abstract to the article states:
In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.
This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.
The empirical evidence surveyed, including the new juror simulation, will be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.
Jury Selection for the Bill Cosby Trial
The Associated Press reported on March 27, 2017 that the defense would like to prescreen 2,000 jurors using juror questionnaires for the Bill Cosby trial. The prosecution has objected to that number. Jurors will be selected from the Allegheny County (Pittsburgh) and will serve 300 miles away in a Philadelphia suburb.